Williams v. Melby, No. 19525

• Court: Supreme Court of Utah
• Writing for the Court: STEWART; HALL; HOWE
• Citation: 699 P.2d 723
• Docket Number: No. 19525
• Decision Date: 29 March 1985
• Parties: Shawn Stevensen WILLIAMS, Plaintiff and Appellant, v. Kenneth O. MELBY, Charlotte B. Melby, Melby-Trayner Properties, a Utah partnership, Kenneth O. Melby and Herbert Trayner, partners, Defendants and Respondents. Kenneth O. MELBY, Charlotte B. Melby, Melby-Trayner Properties, a Utah partnership, Kenneth O. Melby and Herbert Trayner, partners, Third-Party Plaintiffs, v. James WILLIAMS, Jr., Third-Party Defendant.

Page 723

699 P.2d 723 Shawn Stevensen WILLIAMS, Plaintiff and Appellant,
v.
Kenneth O. MELBY, Charlotte B. Melby, Melby-Trayner
Properties, a Utah partnership, Kenneth O. Melby
and Herbert Trayner, partners,
Defendants and Respondents.
Kenneth O. MELBY, Charlotte B. Melby, Melby-Trayner
Properties, a Utah partnership, Kenneth O. Melby
and Herbert Trayner, partners,
Third-Party Plaintiffs,
v.
James WILLIAMS, Jr., Third-Party Defendant. No. 19525. Supreme Court of Utah. March 29, 1985.

Page 724

Walter P. Faber, Brian W. Burnett, Salt Lake City, for plaintiff and appellant.

Tim Dalton Dunn, Salt Lake City, for Trayner.

Darwin C. Hansen, Bountiful, for Melby.

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STEWART, Justice:

Plaintiff appeals from a summary judgment against her claim for damages for personal injury caused by the alleged negligent design, construction, and maintenance of a window through which she fell and injured herself. We reverse and remand.

The plaintiff and her husband moved into the Cambridge Apartments in September, 1980. The apartment owners were the defendants Kenneth O. and Charlotte Melby. The apartments were constructed by the defendant Herbert Trayner, a general contractor who chose the design, selected the mechanical engineer to draw the plans, and approved the plans for the apartments. The plaintiff's apartment, which was located on the third story, was designed with a mansard roof. As a result of the design, the outside wall of plaintiff's bedroom slopes inward and the bedroom window, which is vertical, stands out from the wall and protrudes into the room. The glass part of the window is some twenty-two inches off the floor.

Plaintiff and her husband inspected the room several times before she signed the lease and moved in. However, it was not until she moved in that she discovered that the sloping wall required her king-size, four-poster bed to be located so that a person arising from the bed would be next to the window.

During the night of January 19, 1981, at about 2:30 a.m., plaintiff, who had been sleeping on her husband's side of the bed, arose from the bed while disoriented, stumbled, and fell through the closed window three stories to the ground. She had no exact awareness of how she fell. The fall broke her back, causing permanent paralysis from the waist down. A physician's affidavit, submitted by plaintiff, stated that plaintiff, after waking from a deep sleep, suffered momentary dizziness and disorientation, which probably caused the fall.

Plaintiff sued the Melbys and Trayner, who moved for summary judgment. Plaintiff submitted the affidavit of an architect, which stated that the design of the bedroom window created an unreasonable risk to an occupant's safety. The trial court granted the defendants' motions for summary judgment.

Plaintiff appeals, contending that the trial judge erred in granting the summary judgment motion because (1) an issue of fact existed as to whether the window was defectively designed, constructed and maintained; (2) defendant Melby breached a duty of reasonable care in not making the window safe against the possibility of someone falling through it; and (3) Trayner was more than a contractor following someone else's plans and should therefore be liable for defects in the building.

I.

Summary judgment should be granted with great caution in negligence cases. See Bowen v. Riverton, Utah, 656 P.2d 434 (1982); Lamkin v. Lynch, Utah, 600 P.2d 530 (1979); Rees v. Albertson's, Inc., Utah, 587 P.2d 130 (1978). Plaintiff asserts that the architect's affidavit raised an issue of fact as to whether the building was negligently designed, constructed, and maintained. The defendants attack the sufficiency of the affidavit to raise a question of fact, asserting that the affidavit merely states a conclusion which is insufficient to preclude the granting of a summary judgment motion.

An affidavit which merely reflects the affiant's unsubstantiated conclusions and which fails to state evidentiary facts is insufficient to create an issue of fact. Webster v. Sill, Utah, 675 P.2d 1170 (1983); Walker v. Rocky Mountain Recreation Corp., 29 Utah 2d 274, 508 P.2d 538 (1973). Here, however, a perusal of architect Stanley Crawley's affidavit shows that he alleges the facts upon which his conclusion was based. The affidavit states:

First, the window sill height of 22"' is even with or below the knee of the average person and so increases the possibility that anyone leaning into the window will be off balance and fall outward.

Second, the window and window sill project into the room and are separate

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from the outside wall surface, which increases the possibility that the user might stumble against the sill, lose his or her balance, and fall outward....

Third, the third story location of the apartment, some 25 feet above the ground surface, poses a potential threat to the safety of occupants that is quite different than would be the case for a ground level apartment.

We think the affidavit was sufficient to raise an issue of fact as to whether negligence in the design, construction, or maintenance of the window created an unreasonable risk to occupant safety.

II.

The essential elements of a negligence action are: (1) a duty of reasonable care owed by the defendant to plaintiff; (2) a breach of that duty; (3) the causation, both actually and proximately, of injury; and (4) the suffering of damages by the plaintiff. Flowers v. K Mart Corp., 126 Ariz.App. 495, 616 P.2d 955 (1980); Alegria v. Payonk, 101 Idaho 617, 619 P.2d 135 (1980); ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925 (1981); W. Prosser, The Law of Torts section 130 (4th ed. 1971). See DCR Inc. v. Peak Alarm Co., Utah, 663 P.2d 433 (1983).

At common law a landlord was not liable to his lessee for physical harm caused by a dangerous condition existing on the land when the lessee took possession. Restatement (Second) of Torts section 356 (1965); W. Prosser, supra, section 63 at 400; 52 C.J.S. Landlord and Tenant section 417(3)(a) (1968). Over time, the general rule was modified to make a landlord liable in certain circumstances for injuries resulting from dangerous conditions on leased premises. Thus, a lessor could be liable for negligence if: (1) he had contracted to repair the premises; (2) there was a hidden or latently dangerous condition which was known to the lessor and caused an injury; (3) the premises were leased for purposes of admitting the public and a member of the public was injured; or (4) part of the premises was retained under the lessor's control, but was open to the use of the lessee. Restatement (Second) of Torts sections 357-62 (1965); W. Prosser, supra, section 63. See, e.g., Wilson v. Woodruff, 65 Utah 118, 235 P. 368 (1925) (landlord's duty to maintain stairways). The landlord was, however, not liable for obvious and patent defects existing on the premises at the commencement of the lease. E.g., Lemley v. Penner, 230 Kan. 25, 630 P.2d 1086 (1981) (child fell through weak interior house wall); Tillotson v. Abbott, 205 Kan. 706, 472 P.2d 240 (1970) (tenant fatally burned by open-faced radiant gas heater); Hanson v. Luft, 24 Cal.Rptr. 681, 374 P.2d 641, 58 Cal.2d 443 (1962) (5-year-old burned when clothes ignited by open gas heater). Cf. Noble v. Worthy, D.C.App., 378 A.2d 674 (1977) (22-month old child fell from fifth-floor balcony). But see Hall v. Warren, Utah, 632 P.2d 848, 851 n. 2 (1981).

The common law duty of a landlord has...