Yaniger v. Calvert Bldg. & Const. Co.

• Decision Date: 04 May 1944
• Docket Number: 16.
• Citation: 37 A.2d 263,183 Md. 285
• Parties: YANIGER v. CALVERT BLDG. & CONST. CO.
• Court: Maryland Court of Appeals

37 A.2d 263

183 Md. 285

YANIGER v. CALVERT BLDG. & CONST. CO.

No. 16.

Court of Appeals of Maryland

May 4, 1944

Appeal from Baltimore City Court; John T. Tucker, Judge.

Action by George Yaniger, an incompetent, by his committee, Fannye Yaniger, against the Calvert Building & Construction Company for personal injuries caused by a fall from a window in defendant's office building. From a judgment sustaining a demurrer to plaintiff's amended declaration, he appeals.

Affirmed.

Roszel C. Thomsen, of Baltimore (Paul L. Cordish, of Baltimore, on the brief), for appellant.

Jesse Slingluff, Jr., of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, and BAILEY, JJ.

MELVIN Judge.

This is a suit for damages brought on behalf of the appellant because of the appellee's alleged negligence in failing to provide safeguards at a window in its office building through which the appellant fell and sustained severe injuries. A demurrer to the amended declaration was sustained, without leave to further amend, and it is from this ruling that the plaintiff has appealed.

The suit is based upon the following allegations of fact: The defendant on August 2, 1940, was the owner of the office building known as the 'Equitable Building' in Baltimore City and invited and permitted the general public to enter it to visit its tenants and for other purposes. On the afternoon of the day mentioned, which was a very hot day the plaintiff entered this building by way of the bridge which connects the seventh floor of the Equitable Building with the Calvert Building to visit a tenant, and eventually came into the hallway on the seventh floor in order to take an elevator down to the ground floor. There are four elevator shafts, two on each side of the window hereinafter described but only one pair of buttons or signals to stop the elevator, which buttons are located within a few inches of said window. The plaintiff pushed the 'down' button, but the elevator was long in coming. Immediately beside the button was a tall window, which opened to a height of five feet ten inches from the floor, the sill of which was only two feet two inches above the floor, just above the knee, and well below the center of gravity of a man of normal height, as the plaintiff is. The window was wide open, and this window, as well as the corresponding windows on each floor of the building, was customarily kept open by the defendant during the summer, but had no bar or other guard across it to prevent persons from falling out of it. No warning of the unusually low and dangerous window was posted or otherwise given. The plaintiff saw that the window was there, but his attention was not drawn to the height of the window sill from the floor because he was required to, and did, focus his attention on the location of the elevator buttons as he approached the elevators. After pressing the button, the plaintiff turned toward the window for a breath of air and as he did so he became dizzy and overcome by the heat and the exertion of walking about the streets, and fell toward the window. He fell out of said window on to a sheet metal air duct six or seven floors below, and was seriously and permanently injured. These injuries, the declaration further alleges 'were caused by the negligence of the defendant, its agents, servants and employees, in that it permitted a dangerously low window in the public hallway to be open beside the elevator buttons and shafts without a bar or guard, as aforesaid, knowing that the public generally, including persons who were weak and infirm, or persons who were or might become faint, had to come to the window in order to signal the elevators, without any negligence on the part of the plaintiff contributing thereto.'

The amended declaration also contained the following allegation: 'The feasibility of such protection (placing a bar or other guard across the window) is shown by the fact that the defendant has since caused a bar to be placed across all such windows of the building at a proper height, to wit, fifteen inches above the sill, to prevent people from falling out of the window.' This allegation was stricken out by the Court on motion of the defendant, and the appellant has raised the point on this appeal that the ruling was erroneous. However, in the view we take of the case, it is not necessary to pass upon this incidental point for the reason that, even with this allegation included in it, the amended declaration is demurrable.

The liability of the owner of a public building to invitees has been defined by this Court in numerous cases and the law governing it is well settled. The owner is not an insurer of such persons but owes them the duty, only, to exercise ordinary care to render the premises reasonably safe and to give warning of latent or concealed perils. When the facts alleged show that the danger is as obvious to an invitee as it is to the owner, the latter is not liable for injuries sustained in failing to heed the danger. Pinehurst Co. v. Phelps, 163 Md. 68, 160 A. 736; Morgenstern v. Sheer, 145 Md. 208, 217, 125 A. 790; Fulton Building Co. v. Stichel, 135 Md. 542, 545, 109 A. 434; Yockel v. Gerstadt, 154 Md. 188, 140 A. 40; Texas Co. v. Washington B. & A. Co., 147 Md. 167, 173, 127 A. 752, 40 A.L.R. 495.

In the cases above cited this Court has adopted the statement of the rule as thus expressed in 20 R.C.L. 55: 'The authorities are entirely agreed upon the proposition that an owner or occupant of land or buildings who directly or by implication invites or induces others to go thereon or therein, owes to such persons a duty to have his premises in a reasonably safe condition and to give warning of latent or concealed perils.' See also: Cooley on Torts, 4th Ed., § 440; 45 C.J. §§ 232, 237.

That there is a corresponding duty imposed on the invitee to use due care in avoiding an obvious danger is shown by the following quotation from the succeeding paragraph in 20 R.C.L., and quoted with approval in Fulton Building Co. v. Stichel, supra; Yockel v. Gerstadt, supra; Pinehurst Co. v. Phelps, supra; Texas Co. v. Washington B. & A., supra, and Gordon v. Maryland State Fair, 174 Md. 466, 199 A. 519, supra: 'The mere ownership of land or buildings does not render one liable for injuries sustained by persons entering thereon or therein; the owner is not an insurer of such persons even though he has invited them to enter, nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully upon the premises. The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality or the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant, and not known to the person injured, that a recovery is permitted. * * * And hence there is no liability for injuries from dangers that are obvious, or as well known to the persons injured as to the owner or occupant.'

The general rule embodying the above principle of law is thus stated in Restatement of Torts, Am.Law Inst., Vol. 2, § 343 'A possessor of land is...