Trimble v. Spears

Decision Date25 January 1958
Docket NumberNo. 40786,40786
Citation320 P.2d 1029,182 Kan. 406
PartiesMaxine TRIMBLE, Appellant, v. L. H. SPEARS, Appellee (and L. D. Sloop, Defendant).
CourtKansas Supreme Court

HALL, Justice.

This is an appeal from an order sustaining a demurrer to an amended petition.

The plaintiff and appellant brought an action for damages against the owner of a business building, L. H. Spears, and a tenant in the building, L. D. Sloop. The court sustained the separate demurrer of the defendant L. H. Spears to the plaintiff's amended petition. The tenant and defendant Shoop is not involved in this appeal.

The plaintiff filed an original petition to which the court sustained a motion to strike portions thereof. A motion to make more definite and certain was withdrawn. The demurrer was made to the amended petition. The allegations pertinent to this appeal are as follows:

The plaintiff alleged that the defendant and appellee, L. H. Spears, was the owner of a building on the Main Street in Rossville, Kansas; that the defendant, L. D. Sloop, was a tenant occupying a room at the west end of the building which was used as a dry cleaning establishment; that the building was occupied at the east end by a barber shop; that the defendant and owner Spears maintained and had control of the building; that along the south side of the building, located and maintained by Spears, was a paved walk for the use of customers of the cleaning shop; that at the west end of the walk there was a sign with the words 'Rossville Cleaners'.

The plaintiff further alleged that the owner Spears kept and maintained along the walk on the south side of the building three doorways of similar construction and appearance; that the west doorway opened into the cleaning shop and the east doorway, which was fastened shut, opened into the rear of the barber shop; that the middle doorway opened into a basement stairway which lead directly to the basement of the building from the threshold of the doorway; that this middle door was not fastened shut and had no warning sign or other device to notify the public that it led to an open stairway to the basement.

The plaintiff alleged that by reason of the location and appearance of this middle door it could be and was reasonably mistaken by plaintiff and members of the public for the door to the cleaning shop.

The plaintiff alleged that the maintenance and keeping of the middle doorway in close proximity to the doorway of the cleaning shop and in an unfastened condition without warning signs, guards or rails, constituted negligence and carelessness on the part of the owner L. H. Spears; that the defendant Sloop also knew of the existence of the unfastened door leading to the basement steps and negligently and carelessly permitted the door to so remain.

The plaintiff alleged that on the 8th day of October, 1955, she went to this building owned by Spears for the purpose of taking to the cleaning shop a pair of her husband's trousers; that the plaintiff had not previously been a customers of the cleaning shop but knew the shop was located in this building; that she walked along the concrete walk and saw the sign at the west end of the walk; that she came to a door along the walk which reasonably appeared from its location and appearance to lead to the cleaning shop, opened the door and stepped across the threshold into the building, and fell down the stairway to the basement; that she had mistakenly opened the door leading to the basement steps; that she was injured and damaged by these negligent acts of the defendants and each of them and that her injuries and damages were the direct and proximate result of their negligent acts.

When a general demurrer is lodged against a petition, the petition is to be liberally construed in favor of the pleader, and he is entitled to all reasonable inferences to to be drawn therefrom. Clark v. Hildreth, 179 Kan. 243, 293 P.2d 989; Babcock v. Dose, 179 Kan. 298, 293 P.2d 1007; Rupe v. Smith, 181 Kan. 616, 313 P.2d 293.

Where a motion to make more definite and certain has been filed against an original petition, and such motion is withdrawn, as occurred in this case, the rule of strict construction cannot be invoked. Clark v. Hildreth, supra.

The plaintiff's action is brought on the theory of the liability of a landlord to persons other than a tenant injured on a part of premises retained in the landlord's possession. This point is not in controversy. The appellee admits that the building, other than the rented rooms, the walk, the middle door and the stairs to the basement, were reserved by and under the control of the landlord.

Does plaintiff's petition state a cause of action on this theory?

Similar factual situations presented by this petition have been much litigated over the years. The general rules of law governing the liability of a landlord under such circumstances are pretty well established but in determining whether the proximate cause of an injury to a person, due to the defective condition of the premises retained, particularly of the access to, or the halls or stairways in a building occupied by tenants, is the negligence of the landlord, varies a great deal in the recorded cases.

32 Am.Jur., Landlord and Tenant, § 688, p. 561 states the general rule as follows:

'It is generally held that where the owner of premises leases parts thereof to different tenants and expressly or impliedly reserves other parts thereof, such as entrances, halls, stairways, porches, walks, etc., for the common use of different tenants, it is his duty to exercise reasonable care to keep safe such parts of which he so reserves control, and if he is negligent in this regard, and a personal injury results by reason thereof to a tenant or to a person there in the right of the tenant, he is liable, provided the injury occurs while such part of the premises is being used in the manner intended. * * *'

And 32 Am.Jur., Landlord and Tenant, § 691, p. 549:

'A distinction with respect to the liability of the landlord is made between persons who are upon the premises upon an express or implied invitation of the tenant and mere licensees or trespassers. Persons coming upon the premises merely for their own convenience or profit are mere licensees or trespassers to whom the landlord does not owe a duty to exercise reasonable care to keep the premises safe. The landlord owes to mere licensees and trespassers a duty not to set a trap for them or to injure them by a wilful act. * * *'

See, also, Restatement of the Law of Torts, Vol. 2, Negligence, §§ 360, 361 (and comments thereon); 52 C.J.S. Landlord and Tenant §§ 418(a), 428; The Law of Torts, Harper and James, Vol. 2, § 27.17, p. 1516.

Harper and James state the rule this way:

'The duty owed by a landlord to his tenants and their visitors with respect to common hallways, approaches and the like, which the landlord retains in his possession for the use of his tenants, is sharply different from the duty owed with reference to the leased premises themselves: it is the fully duty of reasonable care to make conditions reasonably safe and includes the obligation of care to discover unknown perils, as well as to remedy known ones. Nor is the duty necessarily satisfied by making the danger obvious or by warning. * * *

* * *

* * *

'The landlord's duty of care in the respect discussed here is generally held to be nondelegable.

'The present duty extends to those parts of the premises over which the landlord retains control but which one or more of his tenants has a right to use as an appurtenance to the lease. This includes hallways and approaches leading to the leased premises, and parts of the roof or basement which the tenant has the right to use (e.g., for storage or drying clothes). It also includes appliances such as elevators, water or heating systems, and the like.

The landlord is also under a similar duty of care to maintain those parts of the structure which remain in his control but are needed for the safety or protection of the leased premises, such as foundations, outside walls, roofs and the like.'

And in 52 C.J.S. Landlord and Tenant § 428:

'Where a landlord has retained control over certain parts of the premises leased, he is under a duty to strangers, such as pedestrians, to keep such parts of the premises in a reasonably safe condition, and he will be liable for injuries to a stranger resulting from the defective condition of the parts under his control. The landlord's duty to the public may not be delegated. * * *'

And in Restatement of the Law, Torts, Vol. 2, Negligence, § 360:

'A possessor of land, who leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sub-lessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.' (Page 976.)

Many of the leading authorities in this field of liability are quite old. A collection of the cases with annotations on the general rule and various aspects of it are found in the Restatement of the Law, Permanent Edition 1932-1944, Torts, §§ 360, 361; Restatement of the Law, 1948 Supplement, Torts, §§ 360, 361; Restatement of the Law, 1954 Supplement, Torts, §§ 360, 361; 1913, 46 L.R.A.,N.S., 121, 126; L.R.A.1915B, 387; LRA1916F, 1073, 1077, 1081, 1098; 25 A.L.R. 1273 supplemented in 39 A.L.R. 294; 58 A.L.R. 1412; 75 A.L.R. 154; 97 A.L.R. 220; 25 A.L.R.2d 364, 444, 496; 26 A.L.R.2d 468, 610.

The Kansas reports are replete with cases relating to the duties and liabilities of a landlord and tenant but only a few relate to the liability of a...

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