Wagman v. Boccheciampe

• Decision Date: 10 September 1965
• Citation: 206 Va. 412,143 S.E.2d 907
• Parties: Slmon WAGMAN et al., etc. v. Dominique BOCCHECIAMPE, etc., et al.
• Court: Virginia Supreme Court

Page 907

143 S.E.2d 907

206 Va. 412

Slmon WAGMAN et al., etc. v. Dominique BOCCHECIAMPE, etc., et al.

Supreme Court of Appeals of Virginia.

Sept. 10, 1965.

Rehearing Denied Oct. 12, 1965.

John A. K. Donovan, Falls Church (Eldon E. Lewis, Donovan, Turnbull & Brophy, Falls Church, on the brief), for plaintiffs in error.

Roland D. Hartshorn, Arlington, on the brief, for defendants in error.

Before EGGLESTON, C. J., and SPRATLEY, I'ANSON, CARRICO and GORDON, JJ.

CARRICO, Justice.

Dominique Boccheciampe, an infant, by her father and next friend, Francois Boccheciampe, and Francois Boccheciampe, in his own right, the plaintiffs, filed a motion for judgment against Simon Wagman, Lawrence L. Levin and Myron L. Levin, a partnership known as Colonial Investment Company and trading under the assumed name of Grand View Apartments, the defendants.

The motion sought the recovery of damages for personal injuries sustained by the infant plaintiff, who was five years of age at the time, as the result of the alleged negligent acts of the defendants. It was alleged in the motion for judgment that the infant plaintiff suffered her injuries when she fell from an outside stairway maintained by the defendants at an apartment project owned by them in Fairfax County. The motion also sought the recovery of medical expenses incurred by the father in the treatment and cure of the infant plaintiff's injuries.

The defendants filed grounds of defense in which they denied any negligent acts on their part.

The case was tried before a jury. A verdict was returned in favor of the infant plaintiff in the sum of $3000.00 and a separate verdict was awarded the father in the sum of $1549.55. The trial court approved both verdicts and, in a final order, entered judgments thereon. The defendants were granted a writ of error.

The evidence, which is without conflict, shows that on March 27, 1962, Mr. Boccheciampe entered into a written lease with the rental agent of the defendants for the occupancy of apartment number 202 in one of the units of the project owned by the defendants. One of the provisions of the lease read, 'Children will not be permitted to play in public halls or on the lawns or entrance steps, or walks of the building.'

The Boccheciampe family moved into the apartment on April 1, 1962. A concrete sidewalk led from the entrance of the building in which their apartment was located to the swimming pool provided for the tenants of the project. The sidewalk was level for some distance, then a stairway descended to a landing 41 feet long and another stairway descended to a lower ground level. The sidewalk and stairways were supported on one side by a vertical stone retaining wall, 7 feet 11 inches above ground level at the top of the first stairway and 4 feet 6 inches above ground level at the landing.

Along the retaining wall side of the sidewalk and stairways, there was installed a metal hand rail. The rail was 34 inches in height and was composed of two parallel bars each 1 1/2 inches in diameter, supported by vertical posts. The lower rail was 18 inches above the sidewalk and stairways and the upper rail was 16 inches above the lower one. The posts of the hand rail were set in the concrete of the sidewalk and stairways 3 inches from the outside edge, above the retaining wall.

Frances Snitz, the resident manager of the apartment project, was called as a witness by the plaintiffs. She testified that she frequently saw children playing on the sidewalk and stairways, crawling through the bars or going around on end or the other of the hand rail, and walking on the three-inch ledge outside of the railing. She said that on each occasion she stopped the children from playing and that they would leave but 'when you leave, they come back.'

On September 3, 1962, which was Labor Day, Mrs. Snitz saw the infant plaintiff among a group of children playing on the stairway, 'running up and down and walking * * * on the outside of the rail.' She went to her door and 'called to them and they immediately went off.' Mrs. Snitz then became occupied with showing an apartment to a prospective tenant.

Approximately a half hour later, the infant plaintiff, accompanied by three other children, returned to the area and began playing on the stairway. The infant plaintiff went around the end of the hand rail and walked along the three-inch ledge outside of the rail. She fell from the ledge, apparently where it was 4 feet 6 inches in height, to the ground below, fracturing her right arm. Her father, who was in his apartment, was summoned and the child was taken to the hospital.

Although the defendants have assigned a number of errors, we are of opinion that the controlling question, as phrased by the defendants, is this:

'Was there sufficient evidence presented to show negligence on the part of the [defendants] for which they could be held?'

In Revell v. Deegan, 192 Va. 428, 65 S.E.2d 543, 26 A.L.R.2d 462, it was said, in a situation similar to the one before us:

'The legal principles by which the sufficiency of the evidence is to be tested are simple and well defined. A landlord who rents out parts of a building to various tenants, reserving the halls, stairways, and other approaches for the common use of his tenants, is under an implied duty to use ordinary care to keep such places in a reasonably safe condition, and is liable for injuries to persons lawfully using those places for failure to perform that duty. * * *' 192 Va., at p. 433, 65 S.E.2d, at p. 546.

In the light cast by these principles, we examine the plaintiffs' allegations of negligence and view the evidence to determine whether the plaintiffs have borne their burden of proof in establishing a dereliction of duty on the part of the defendants.

The plaintiffs first alleged that the defendants were negligent because, knowing that children played on the hand rail, they failed to maintain the stairway in a reasonably safe condition and failed to modity or repair the railing.

The plaintiffs sought to sustain this allegation by calling to the witness stand Bernard Paul Landry, a safety engineer with nine years of experience.

Mr. Landry was asked if, in his opinion, the railing in question was safe for children to play on. He replied, 'In this particular location, no.'

This testimony was inadequate to accomplish the purpose for which it was intended. Mr. Landry's expert opinion assumed that the defendants were under an obligation to provide a hand rail which was safe for children to play on. No such duty rested upon the defendants. Their duty was to furnish a hand rail which rendered reasonably safe the sidewalk and stairways for those making proper use thereof.

In 32 Am.Jur., Landlord and Tenant, § 609, p. 566, it is stated:

'The landlord is not liable to the tenant or to persons in privity with the tenant for injuries sustained because of the...