Weaver v. Arthur A. Schneider Realty Co., 50086

• Court: Missouri Supreme Court
• Writing for the Court: HYDE; EAGER
• Citation: Weaver v. Arthur A. Schneider Realty Co., 381 S.W.2d 866 (Mo. 1964)
• Decision Date: 13 July 1964
• Docket Number: No. 50086,50086
• Parties: Harrietta Ellen WEAVER, a Minor, by Shirley L. Weaver, Her Mother and Next Friend, Plaintiff-Appellant, v. ARTHUR A. SCHNEIDER REALTY COMPANY, a Corporation, Defendant-Respondent.

Page 866

381 S.W.2d 866

Harrietta Ellen WEAVER, a Minor, by Shirley L. Weaver, Her Mother and Next Friend, Plaintiff-Appellant, v. ARTHUR A. SCHNEIDER REALTY COMPANY, a Corporation Defendant-Respondent.

No. 50086.

Supreme Court of Missouri, En Banc.

July 13, 1964.

Rehearing Denied Sept. 14, 1964.

Hubert I. Binowitz, Hoffman & Binowitz, St. Louis, for plaintiff-appellant.

Burton H. Shostak, R. E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.

HYDE, Judge.

Action for $18,500.00 damages for personal injuries. The court dismissed for failure of plaintiff's petition to state facts entitling plaintiff to any relief and plaintiff has appealed.

Plaintiff's petition alleged that she resided in a multiple dwelling house, in St. Louis, with her family who were tenants of defendant. Allegations of the petition as to facts, negligence and injury were as follows:

'That on or about the 31st day of July, 1962, plaintiff was approximately sixteen months of age and was situated in the common hallway located in the abovementioned premises at which time plaintiff consumed pieces of plaster which had been allowed to fall from the ceiling and wall of said common hallway and plaintiff, as the direct result of the negligence and carelessness of defendant in the maintenance of said common hallway, sustained serious and permanent injuries.

'That the aforesaid common hallway, and at the point where said plaster had fallen, was in a dangerous and unsafe condition as a result of said fallen plaster, the walls and ceilings thereof being in a rotted and decayed condition; that said condition had existed for a sufficient length of time and defendant knew or by the exercise of ordinary care should have known that said condition was dangerous and unsafe for persons in the area and more particularly those of tender years such as plaintiff, as said pieces of fallen plaster were poisonous to the human system and would likely have been consumed by such persons.

'That plaintiff's injuries and damages were the direct and proximate result of the negligence and carelessness of defendant in the following particulars:

'A) Defendant negligently and carelessly maintained said common hallway and the walls and ceilings thereof in a rotted and decayed condition so as to allow pieces of plaster to fall therefrom to the floor and created said dangerous condition.

'B) Defendant negligently and carelessly failed and omitted to remove from said hallway said fallen pieces of plaster.'

The trial court's view was: 'It could not be reasonably foreseen that plaintiff would eat plaster, and be injured.' Plaintiff cites Acosta v. Irdank Realty Co., 38 Misc.2d 859, 238 N.Y.S.2d 713, in which an owner of a multiple dwelling was found negligent in failing after notice to repair walls from which paint and plaster had been falling to the floor. A two-year-old child of a tenant sustained injuries from eating the plaster and paint. The court found plaintiff entitled to damages saying: 'That small children go around the house picking up everything within their reach and placing it in their mouths and attempting to eat it is well known. They often have a craving to put in their mouths and eat most unusual things. It would not be unreasonable, therefore, to foresee that Yvette (plaintiff) would pick up pieces of plaster and paint if they were lying around and eat them. * * * [I]n the setting and surrounding conditions which existed at the premises in question, the hazard which the broken walls presented should have been reasonably foreseeable to the landlord.'

However, there is one very significant difference between the Acosta case and this one. In the Acosta case, the defective walls were those of the apartment in which the child lived with her parents (defendant's tenants) and, of course, her presence there was known and expected. The landlord had the duty to keep the interior walls of the apartment in proper repair under the New York Multiple Dwelling Law and the court found the existing condition was in violation of that law. In this case, the defective condition was in a common hallway and it is not alleged that such small children as plaintiff were ever in the hallway alone or allowed to play there or that defendant had any notice of the presence of such small children there or any reason to expect them to be in the hallway without an older person in charge.

Certainly the petition states facts showing a violation of defendant's duty to its tenants and members of tenants' families to keep the common hallway in repair. As to the liability of a landlord for injuries to members of a tenant's family for such a failure see 32 Am.Jur. 567, Landlord and Tenant, Sec. 691; 52 C.J.S. Landlord and Tenant Sec. 419, p. 66; Prosser on Torts, p. 471, Sec. 80. Of course, for the condition of hallway alleged, the landlord would be liable for injuries due to loose plaster falling on a member of the tenant's family or for one of them falling because it was on the floor, as such results clearly would be foreseeable results of failure to remedy such condition. However, defendant says its duty 'does not extend to a result which is extraordinary and unusual and not the natural and probable consequences of his act or omission.' Therefore, while defendant had a duty to his tenants and members of their families to repair the condition shown, to prevent injury from external contact with falling or fallen plaster, the decisive question here is: Under the facts alleged, did defendant have the duty to plaintiff to prevent, by repairs or removal of the plaster, the kind of injury plaintiff sustained?

Defendant, citing also such cases as Davidson v. Hennegin, Mo.Sup., 304 S.W.2d 836; Mann v. Pulliam, 344 Mo. 543, 127 S.W.2d 426; American Brewing Association v. Talbot, 141 Mo. 674, 42 S.W. 679; Pietraschke v. Pollnow, Mo.App., 147 S.W.2d 167, relies on the rule of Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253: 'The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.' In the Palsgraf case, as explained in Prosser on Torts 169, Sec. 36, 'A passenger was running to catch one of the defendant's trains. The defendant's servants, assisting him to board it, dislodged a package from his arms, and it fell upon the rails. The package contained fireworks, which exploded with some violence. The concussion overturned some scales, many feet away at the other end of the platform, and they fell upon the plaintiff and injured her. The defendant's servants, who were found by the jury to be negligent, could have foreseen harm to the package, or at most to the passenger boarding the train; no harm to the plaintiff could possibly have been anticipated.' The rule of Palsgraf is accepted and stated in the American Law Institute Restatement of Torts, Sec. 281, comment c, stating: 'If the actor's conduct creates a recognizable risk of harm only to a particular class of persons, the fact that it causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not render the actor liable to the persons so injured.' See Karr v. Chicago, Rock Island and Pacific R. Co., 341 Mo. 536, 108 S.W.2d 44, 48, and cases cited; Vanacek v. St. Louis Public Service Co., Mo.Sup., 358 S.W.2d 808, 810; Law of Torts, Prosser, 168, Sec. 36, Unforeseeable Plaintiffs.

It has been said that a lessor, knowing the family of a tenant includes young children, may assume those in authority over them will protect them and see that they are not permitted to wander alone where there is danger and that the lessor is not negligent in failing to foresee that parents will not protect their very young children from getting into danger. American Fire & Casualty Co. v. Jackson, USCA 5th, 187 F.2d 379; see also Anderson v. Reeder, 42 Wash.2d 45, 253 P.2d 423; Harakas v. Dickie, 224 Mo.App. 171, 23 S.W.2d 651. In these cases, the danger came from the construction or arrangement of the premises or facilities rather than from failure to repair; but this view seems reasonably applicable to children as young as plaintiff being in this hallway. See also McKenna v. Andreassi, 292 Mass. 213, 197 N.E. 879, 884. In a case in which lattice work protecting a stairway landing. where '[c]hildren had been in the habit of playing,' was allowed to become loose causing a child playing there to fall, it was held 'that the rule that one making an unintended use of the property cannot recover for its negligent maintenance is 'inapplicable to infant invitees attracted by dangerous objects * * *.'' Freeman v. Mazzera, 150 Cal.App.2d 61, 309 P.2d 510, 511. See New * * *." Freeman v. Mazzera, 150 USCA 3rd, 73 F.2d 184; Saad v. Pappageorge, 82 N.H. 294, 133 A. 24; see also 31A C.J.S. Evidence Sec. 80, p. 93; 65 C.J.S. Negligence Sec. 12 b, p. 400, as to characteristics, capacities and propensities of children. Here plaintiff certainly was making an unintended use of the fallen plaster and the question is whether at that place such a use by a small child was within the range of apprehension under the facts alleged.

The Restatement of Torts, as to legal cause, says in Sec. 431: 'The actor's negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.' As to foreseeability, the Restatement in Sec. 435 says: (1) 'If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.' See Phillips v. Stockman, Mo.App., 351 S.W.2d 464, 474, and cases cited; Tharp v. Monsees, Mo.Sup., ...