Williams v. Davis

• Decision Date: 10 June 1961
• Docket Number: No. 42204,42204
• Citation: 188 Kan. 385,362 P.2d 641
• Parties: Donald WILLIAMS, a Minor, by and Through His Mother and Next Friend, Lula Williams, Appellant, v. A. Porter DAVIS and Hazel Davis, Appellees.
• Court: Kansas Supreme Court

Page 641

362 P.2d 641

188 Kan. 385

Donald WILLIAMS, a Minor, by and Through His Mother and Next Friend, Lula Williams, Appellant, v. A. Porter DAVIS and Hazel Davis, Appellees.

No. 42204.

Supreme Court of Kansas.

June 10, 1961.

Syllabus by the Court

1. A covenant to repair leased premises imposes on the lessor a liability in tort to the lessee and others rightfully on the premises for an injury naturally and proximately resulting from his failure to perform the covenant to repair, if the disrepair creates an unreasonable risk to persons upon the land which would have been prevented had the agreement been performed (following Waterbury v. Riss & Company, 169 Kan. 271, 291, 219 P.2d 673, which cited and quoted with approval the Restatement of the Law of Torts, § 357, p. 967). Insofar as Murrell v. Crawford, 102 Kan. 118, 169 P. 561, conflicts with what was said and held in Waterbury v. Riss & Company, supra, and with the views expressed in this opinion, it is overruled.

2. The record in an action to recover damages for personal injuries sustained by a seven-year-old boy when he slipped and rolled through or under a banister on the small back porch of his parents' apartment which they rented upon the defendants' assurance to repair the porch so it would not be dangerous for small children but failed to do so, is examined, and it is held: A cause of action was alleged against the defendants and the district court erred in sustaining their demurrer to plaintiff's petition.

Barton P. Cohen, Kansas City, argued the cause, and Joseph Cohen, Charles S. Schnider, John E. Shamberg, Joseph P. Jenkins, Norma Braly, Jacob F. May, Jr., and Frederick K. Cross, Kansas City, were with him on the briefs, for appellant.

Joseph H. McDowell, Kansas City, argued the cause, and Joseph T. Carey, Kansas City, was with him on the briefs, for appellees.

FATZER, Justice.

This was an action to recover damages for personal injuries. The appeal is from an order of the district court sustaining defendants' demurrer to plaintiff's petition. The parties will be referred to as they appeared in the court below.

Plaintiff, an infant seven years of age, commenced this action by and through his mother as next friend on November 27, 1959. The petition described in detail the circumstances under which plaintiff was injured. The physical facts alleged are that plaintiff lives with his parents in an apartment building owned by defendants. They moved into the apartment in March 1959. Prior to moving into the apartment, plaintiff's parents advised defendants that the 2 X 4 wooden railing or banister on the small back porch was inadequate and dangerous for their small children, including plaintiff. Defendants assured them they would make repairs on the porch as soon as their regular workmen were available. Upon that assurance, plaintiff and his parents moved into the apartment and became tenants of defendants. As time went by no repairs were made and plaintiff's parents made repeated requests to defendants to fulfill their promise to repair, but defendants failed to do so. On October 4, 1959, at about 8:30 p. m. while plaintiff was on the small back porch to hang up some diapers, he lost his footing, rolled through or under the banister and fell approximately fifteen feet to the ground, causing serious injuries fully described in the petition.

We first point out that this case does not involve a portion of leased premises retained by the landlord such as a common stairway, halls, porches or lands, since the petition clearly alleged that the only access to the small back porch was from the plaintiff's parents' apartment and that no stairs lead to or from the porch.

It is apparent from the district court's memorandum decision sustaining the demurrer that it relied upon Murrell v. Crawford, 102 Kan. 118, 169 P. 561. In reaching its decision the district court noted that plaintiff cited the case of Waterbury v. Riss & Company, 169 Kan. 271, 219 P.2d 673. It further noted that in 169 Kan. at page 291, 219 P.2d at page 687, this court cited and quoted with approval the Restatement of the Law of Torts, Section 357, which rule seemed to be in conflict with the Murrell decision, but concluded the Waterbury case did not change the law of this state with respect to living quarters as announced in the Murrell case, since the premises involved in the Waterbury case was business property.

In Murrell v. Crawford, supra, plaintiff rented a house from defendant upon defendant's promise that the porch would be repaired immediately and put in a safe and tenantable condition. The landlord failed to repair the porch and the tenant was injured when she fell through a rotted portion of it. In denying recovery for personal injury this court recognized that a cause of action against the landlord was created by his breach of the covenant to make repairs, and held that (1) the measure of damages was the difference between the rental value of the premises as they were and what it would have been if they had been put and kept in repair; (2) a breach of the landlord's covenant to repair the dwelling house did not extend to include a liability for personal injury sustained by the tenant in the use of the unrepaired property since loss of life or limb was not a natural and probable consequence which ordinarily and reasonably could be anticipated from a breach of the covenant to make repairs, and (3) where a tenant knew the porch was defective and in need of repair but continued to use if for several months, and was injured thereby, she was guilty of contributory negligence as a matter of law as will bar a recovery for such injuries, notwithstanding the landlord promised to repair the porch but failed to do so.

In Waterbury v. Riss & Company, supra, the lessor orally promised the lessee that he would repair the floor of the leased warehouse, but failed to do so. Later, when a delivery man entered upon the leased premises, the floor gave way and he was killed. In affirming the liability of the landlord, this court said:

'* * * The American Law Institute, in its Restatement of Torts, § 357, lays down what appears to be the applicable rule as follows:

"A lessor of land is subject to liability for bodily harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession, if

"(a) the lessor, as such, has agreed by a covenant in the lease or otherwise, to keep the land in repair, and

"(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor's agreement would have prevented.' (Our emphasis.)' 169 Kan. loc. cit. 291, 219 P.2d loc. cit. 687.

We quote the comment and illustration of the American Law Institute's Restatement of the Law of Torts, § 357, which are particularly pertinent to the point in question:

'Comment:

'a. Nature of lessor's duty. The lessor's duty to repair in so far as its breach subjects him to liability for bodily harm caused to the lessee and those upon the land in his right, is not contractual but is a tort duty based on the fact that the contract gives the lessor ability to make the repairs and control over them. The lessor is not liable for bodily harm caused even to his lessee by his failure to make the premises absolutely safe. He is liable only if his failure to do so is due to a lack of reasonable care exercised to that end. Like many other tort duties to keep land in safe condition, the lessor's duty to repair is not delegable, and he is liable as fully where the failure to make the premises reasonably safe is due to the negligence of an independent contractor to whom the lessor has entrusted the performance of his contract as he is where it is due to his own personal negligence. Since the duty arises out of the existence of the contract to repair, the contract defines the extent of the duty. Unless the contract stipulates that the lessor shall inspect the premises to ascertain the need of repairs, a...