Whalen v. Zolper

• Decision Date: 27 February 1959
• Citation: 1 Storey 519,148 A.2d 778,51 Del. 519
• Parties: , 51 Del. 519 Theresa WHALEN and John J. Whalen, Jr., her husband, Plaintiffs, v. Carl W. ZOLPER and Marion M. Zolper, his wife, Defendants.
• Court: Delaware Superior Court

Page 778

148 A.2d 778

1 Storey 519, 51 Del. 519

Theresa WHALEN and John J. Whalen, Jr., her husband, Plaintiffs, v. Carl W. ZOLPER and Marion M. Zolper, his wife, Defendants.

Superior Court of Delaware, New Castle County.

Feb. 27, 1959.

Wilfred J. Smith, Jr., and Frank J. Gentile, Jr., Wilmington, for plaintiffs.

John P. Sinclair (of Berl, Potter & Anderson), Wilmington, for defendants.

STIFTEL, Judge.

Motion by defendants for summary judgment pursuant to Superior Court Rule 56, Del.C.Ann.

This action is based on personal injury arising out of an accident which occurred on March 19, 1957. The defendants owned a three-story apartment building, with an apartment on each floor, at 1409 Harrison Street, in the City of Wilmington. The plaintiff, Theresa Whalen, lived in the third floor apartment with the other plaintiff, her husband, together with their two children. A railing that ran the width of a porch separated the property of the defendants from the property next door, at 1411 Harrison Street, which was not owned by the defendants. There were three cement steps immediately below the entrance to the porch, which were used in common by the occupants of 1409 and 1411 Harrison Street, and these steps led down to a landing, at the end of which there were four additional stone steps which led to the sidewalk at street level. The defendants, the lessors, lived in a building owned by them at 1407 Harrison Street. An alley separated the two properties owned by the defendants.

In the early morning of March 19, 1957, it snowed. During the day the snow melted. As it melted, the water dripped from the common roof onto the common porch below. The roof was a slanted tin roof with a lip to catch water and then carry the water to a drain pipe leading to the ground below. The roof structure had not been changed or repaired since the property was purchased five years prior to this time.

Late in the afternoon or early in the evening it became colder, ice formed on the porch as a result of water dripping from the roof. However, when Mr. Whalen returned from work about six in the evening, he crossed the porch with no difficulty and he did not notice any ice or water on the porch. Approximately one hour and a half later, at about 7:30 P.M., Mrs. Whalen left her third floor apartment on her way to the drugstore to purchase medicine for her young child, who was slightly ill. She was wearing flat shoes and rubber boots and holding a pocketbook with her left hand. No light was lit on the porch in front of the apartment house in which she lived, but there was a bright light on the front porch of the property next door at 1411 Harrison Street. Mrs. Whalen saw the ice on the porch and when she reached for a metal handrail that ran waist-high next to the steps down to the landing, she slipped on the ice and fell down the three-step flight of stairs to the landing and was injured.

Mrs. Whalen and her husband had been aware for some time that after a snowfall water dripped from the roof onto the edge of the porch.

At one time, defendants employed a person to clean the stairways and porches, but when this employee became aged, he was discharged and defendants assumed his duties. In fact, the defendant Mrs. Zolper had cleared the walk and the porch steps on the morning of the accident.

The nub of the fault alleged by the complaint is the defective condition of the roof over the porch which resulted in the formation of ice on the porch from the melting snow and ice on the roof.

The parties agree that the porch and steps were used in common by the tenants of the defendants' apartment house and that they remained in possession and control of the landlords.

The authorities in this country on the question of whether or not there is a duty on the part of the landlord who has rented a building to several tenants to remove natural accumulations of ice or snow in certain areas such as on porches and steps used in common are not in harmony. The cases on the subject are collected in 25 A.L.R. 1273; 39 A.L.R. 294; 58 A.L.R. 1411; 75 A.L.R. 154; 97 A.L.R. 220, and more recently, in 26 A.L.R.2d 610. From an examination of certain treatises and of the cases cited in the above A.L.R. notes, it appears that the authorities are primarily divided between the common-law Massachusetts rule and the so-called Connecticut rule. Durkin v. Lewitz, 3 Ill.App.2d 481, 123 N.E.2d 151, 155, 156. The Massachusetts rule holds that the relation of landlord and tenant does not impose upon the landlord a duty to remove from common areas under his control ice or snow naturally accumulating there. Bell v. Siegel, 242 Mass. 380, 136 N.E. 109, 25 A.L.R. 1261; Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357; 2 Stevenson in the Atlantic States (1954 ed.), Sec. 513. The Connecticut rule as stated in Reardon v. Shimelman, 102 Conn. 383, 128 A. 705, 707, 39 A.L.R. 287, imposes upon the landlord a liability for injuries due to the accumulation of ice or snow, provided he knew or ought to have known of the existence of the dangerous condition existing and failed to exercise reasonable care to provide against the injury because of it. The landlord has the duty to use reasonable care to see to it that the premises are kept safe. Sheehan v. Sette, 130 Conn. 295, 33 A.2d 327, 328.

The basic difference between the two rules is that under the Massachusetts line of cases, an adherence to the common-law conception of the duty of a landlord is followed, and snow and ice are understood to be temporary obstructions for which a landlord is not held liable, and the Connecticut line of cases follows the more modern approach requiring the landlord to use reasonable care with respect to premises used in common, including the removal of ice and snow. Durkin v. Lewitz, supra, 123 N.E.2d at page 156.

The complaint alleges and plaintiffs admitted in argument that the defendants were negligent in one respect only, namely, that they permitted a defective condition of the roof to exist over the porch which caused water to fall from the roof and accumulate on the porch at the top of the front steps whenever it rained or snowed.

No Delaware case decides the landlord's responsibility to his tenant for the removal of natural accumulations of ice or snow from...