Yazzolino v. Jones

• Decision Date: 10 September 1957
• Citation: 153 Cal.App.2d 626,315 P.2d 107
• Court: California Court of Appeals Court of Appeals
• Parties: Dominic YAZZOLINO, by Dominie Yazzolino, his guardian ad litem, and Dominic Yazzolino, Plaintiffs and Respondents, v. C. JONES, Also Known As Mary C. Jones, Defendant and Appellant. Civ. 17297.

Page 107

315 P.2d 107

153 Cal.App.2d 626

Dominic YAZZOLINO, by Dominie Yazzolino, his guardian ad litem, and Dominic Yazzolino, Plaintiffs and Respondents, v. C. JONES, Also Known As Mary C. Jones, Defendant and Appellant.

Civ. 17297.

District Court of Appeal, First District, Division 2, California.

Sept. 10, 1957.

Rehearing Denied Oct. 10, 1957.

Hearing Denied Nov. 5, 1957.

Sullivan, Roche, Johnson & Farraher, San Francisco, for appellant.

Andrew Bodisco, Ollie M. Marie-Victoire, San Francisco, for respondents.

KAUFMAN, Presiding Justice.

This appeal is taken by defendant, Mary C. Jones, from an order denying her motion for a judgment notwithstanding the verdict and a judgment on a jury verdict in favor of the plaintiff, Dominic Yazzolino, a minor, and his father. The complaint sought to recover damages and medical expenses for personal injuries sustained in the plaintiff's fall from the exterior rear stairway of a two story two flat structure owned by the defendant in the City of San Francisco.

As there is conflicting evidence on several matters, a detailed statement of facts is necessary. The accident occurred on the afternoon of Sunday, May 24, 1953, when the plaintiff was nine years old. The defendant had rented the lower flat of the property in question to Mr. and Mrs. Duffy and their son, Ronald, who was also nine years old at the time of the accident. The plaintiff lived around the corner from the Duffys and played with Ronald Duffy every day. On the afternoon in question, Ronald Duffy was standing on the landing of the exterior rear stairway checking the sights on his air rifle.

Ronald's parents testified that they did not know where he was on the afternoon of the accident. Ronald testified that he had told his parents he was going out on the back stairs. According to the testimony of the plaintiff and the plaintiff's younger brother, they were sitting on their back porch when Ronald yelled to them to come over to help him check the sights on the air rifle. According to the testimony of Ronald, the plaintiff 'asked me if he could come over.' The plaintiff then got permission from his mother to go out, but didn't tell her where he was going. The plaintiff and his brother, Mike, who was seven years old at the time of the accident, then joined Ronald on the stairway. There was no evidence that the boys had played on the stairway before, or that they had permission from the upstairs tenant to play on the stairway, or that the upstairs tenant or anyone had seen them playing on the stairway prior to the date of the accident. Ronald had been expressly forbidden to play on the rear stairway, and did not customarily play there 'as there was no one to play with,' although he did on occasion run up and down the stairway. The plaintiff had never been told by anyone not to play on the particular stairway where the accident occurred. His parents did not know where he was at the time of the accident and had not given him permission to play on the stairway. The stairway in question is a wooden exterior stairway, the lower portion of which is outside the back door to the Duffy flat. There is a gate in the center, separating the lower from the upper portion of the stairway. The upper portion led only to the back door of the flat of the upstairs tenant who had never used the stairway. The Duffys used the stairway once every six or seven months to visit the upstairs tenant. The railing consists of three rails about 8-10 inches apart, parallel to the stairs. The distance from the top rail to the step is 35 inches. At the time of the trial, the plaintiff was five feet tall. There were no records available as to his height at the time of the accident, but he and his mother testified that he had grown about 6 inches in the intervening three years.

The plaintiff, Ronald Duffy and Mike Yazzolino all testified that just before the accident the plaintiff was crouching on a step in the upper portion of the stairway, and leaning on the center rail and pointing the rifle toward a tree. The center rail gave way and the plaintiff fell 12-14 feet to the ground and sustained the injuries which are the subject of this action. The evidence is in conflict as to whether at the time of the accident the bottom rail was missing at the particular spot where the accident occurred. The policeman, who subsequently reported the accident, testified that the plaintiff had told him at the hospital that he had been sitting on top of the railing prior to the accident. Ronald did not see the plaintiff fall as he was talking to Mike about three steps away from the plaintiff. Mike testified that he saw the plaintiff fall and the railing break. The plaintiff testified that he did not see or feel a loose rail before he fell. Ronald did not see the rail give way or a board falling with the plaintiff. The plaintiff's father testified that one of the boards which was found on the ground with the plaintiff after the fall was a board which belonged to the railing of the upper stairway.

The evidence produced at the trial disclosed that the Duffys had rented the premises since 1945 on an oral lease from the defendant. The defendant testified that she had an oral understanding with both the Duffys and the upstairs tenant that, if any repairs were necessary on the premises, the tenants were to make repairs or arrange to have anything they could not do themselves done by someone else and then notify the defendant. On a number of occasions, repairs had been made in this manner and the rent reduced accordingly. Mr. Duffy testified that he had repaired the back stairway from time to time, and Mrs. Duffy corroborated this testimony. The upstairs tenant had also had the back stairway repaired by her son-in-law. Rent was paid by the tenants to a local druggist, a good friend of the defendant who out of friendship banked the rent moneys of forwarded them to the defendant.

The defendant acquired the property in 1934 and had been on the property only three or four times since then as she was out of town most of the time with her husband. She kept no keys to the premises when they were rented. The premises had not been inspected by any official since they were built. The defendant testified that she had been on the stairway in question not more than once or twice in 20 years, that no one had ever notified her that the stairs were defective, and that it did not occur to her that the stairs needed repairs; 'I had Mr. Jones to look out for those things for me.' The last time before the accident the defendant had been on the stairway was in December 1952, when she rented the upstairs flat.

The defendant's husband, Mr. Jones, testified that he had been in San Francisco on ten to twelve occasions in the last five years at the most and that he never went out to the premises unless called as 'the tenants always took care of everything.' He further testified that he had been on the property in question about 15 times in the last five years, although he was certain about having been there only six times when the tenants changed, and that he had gone up and down the stairway in question on each visit. He had gone up the stairs to inspect the roof just before the upstairs flat was rented in December, 1952; that the 'stairs have always been in condition; in good condition, as any stairs in San Francisco of that type of house.' He also testified as follows: '* * * and sometimes we have renovated the premises. We always kept the thing in pretty good shape, much above average.'

Mr. and Mrs. Duffy testified that on the occasion before the accident when Mr. Jones was on the premises, they had complained to him about their sink and the back stairway and he had promised to see about them. Mr. Jones denied that the stairway had been mentioned to him on that or any other occasion. Mr. Duffy testified that Mrs. Duffy had written a letter to the Jones about repairing the stairs before the accident, but Mrs. Duffy denied writing such a letter. The letter in question was subsequently admitted at the trial and contained no mention of the stairs.

The defendant's contentions on appeal are that as a matter of law she is not liable as she did not retain control over the premises which were not a common areaway; that the plaintiff has not proved the negligence of the defendant as the plaintiff has not shown that the defendant had any duty toward the plaintiff or established any defect in the premises or any causal connection between a defect and the injury; that even if the plaintiff had established a prima facie case of negligence, she would not be liable because of the plaintiff's contributory negligence, as well as various alleged errors of the trial court in its rulings on the admissibility of evidence and in its instructions to the jury.

As to the primary issue of the defendant's retention of control over the exterior stairway on which the accident occurred, the general rule in this state is that "In the absence of fraud, concealment, or covenant in the lease, a landlord is not liable to a tenant for injuries due to the defective condition or faulty construction of the demised premises." Epperson v. Mendes, 141 Cal.App.2d 581, 584, 297 P.2d 141, 143; Ellis v. McNeese, 109 Cal.App. 667, 293 P. 854. However, the general rule is subject to the well recognized exception that the landlord has a duty to use ordinary care to keep in a safe condition portions of the premises over which he retains control such as common areaways; if the landlord is negligent in this regard, he is liable to a tenant for any resulting injury. Hassell v. Denning, 84 Cal.App. 479, 258 P. 426; Brown v. Pepperdine, 53 Cal.App. 334, 200 P. 36.

In Freeman v. Mazzera, 150 Cal.App.2d 61, 309 P.2d 510, 511, this court said: 'The stairway was a common one reserved by the owners-lessors and under their control. They thus owed the tenants and other invitees a duty to use ordinary care to keep this area in a safe...