Boe v. Healy

¶1*157Plaintiff, Nancy Boe, was a tenant in a duplex owned by the defendant, James Healy, and in this action seeks to recover from him damages for the loss of her personal property as the result of a fire. A jury found in her favor. Defendant's motions for directed verdict, and for judgment notwithstanding verdict and, in the alternative, for a new trial were denied and he appeals. Error is assigned in (1) the denial of such motions, and (2) in instructions.

¶2The duplex was a two-story frame building with an upstairs apartment, a ground floor apartment, a front and rear porch, basement, back yard and garage. It was so designed that parts of it were used exclusively by occupants of the respective apartments and other areas were used in common by all tenants. At the time of the fire, which occurred on January 2, 1966, plaintiff occupied the upstairs apartment and a group of boys lived in the downstairs apartment. Plaintiff began her tenancy under an oral lease in April, 1965. The defendant acquired the property on July 18, 1964.

¶3The apartment duplex had one chimney which was constructed of brick and mortar and rose from a concrete floor in the basement and extended through the interior of both apartments to above the roof. Each apartment had a fireplace attached to and within the chimney and each apartment also had its own gas heating furnace connected to the same chimney. Other parts of the structure used in common were a front porch and the entrance thereto; a rear porch and steps for access to it; a single stairway to the basement; and the rear door to the building. Each fireplace had a metal plate at its base which when removed would allow ashes and debris to be dropped through a flue to the bottom of the chimney. Plaintiff had never used the fireplace in her apartment.

¶4Each apartment lessee had storage space in the basement. In the southwest corner were two small storerooms, one for each apartment, with separate doors, where storm windows, screens, and awnings were kept for the apartments. The chimney was located within the area where the storm windows, etc., for plain*158tiff s apartment were stored and it formed a part of a solid wall between areas used by the respective tenants. There was evidence that cloth awnings and screens for plaintiff's apartment were placed against the chimney; that it was poorly lighted; that the awnings had not been used for some time and not while plaintiff rented the apartment. There was also evidence that during the evening before the fire the tenants in the first floor apartment had a fire in their fireplace.

¶5Plaintiff used as one of her chief witnesses an assistant fire chief who had had many years experience in fighting fires and investigating their causes. He had attended the fire and had made a post fire investigation to determine its cause. He testified that there was a hole and some loose bricks near the base of the chimney in the area where cloth awnings and screens had been stored. He took photographs shortly after the fire which were received in evidence. One of such photographs. Exhibit 2 is shown below.

¶6

¶7*159The assistant fire chief gave an opinion that a burning log had dropped from the fireplace to the base of the chimney; that a spark'or ember came through the openings in the area of the loose bricks and ignited the cloth awnings; that they in turn started the screens on fire, and the fire then spread through the walls to plaintiff's second floor apartment.

¶8As a general rule the owner of a building who has leased such building to another without any agreement to repair is not liable to.a tenant or to his invitees for injuries sustained by reason of its unsafe condition. Wiggins v. Pay's Art Store, 47 S.D. 443, 199 N.W. 122; 52 C.J.S. Landlord and Tenant § 417(3). However, this rule does not apply where the owner reserves control of a portion of the premises for use in common by himself and the tenants, or by different tenants. John Moodie Dry Goods Co. v. Gilruth, 35 S.D. 567, 153 N.W. 383; Simmons v. Pagones, 66 S.D. 296, 282 N.W. 257; West v. Hanley, 73 S.D. 540, 45 N.W.2d 455. The landlord's liability has been said to be one sounding in tort and based upon negligence and not as arising from breach of the leasing contract. 52 C.J.S. Landlord and Tenant § 417(6). Exceptions to the general rule are most often found in cases where injuries occur in the use of stairways, hallways, and elevators where either the owner has control or the owner'.and the tenant have joint control. Cases are collected and discussed in Annot., 25 A.L.R.2d 44 and 26 A.L.R.2d 468.

¶9The controlling rule applicable appears in Restatement of the Law, Torts 2d, § 361; "A possessor of land who leases a part thereof and retains in his control any other part which is necessary to the safe use of the leased part, is subject to liability to his .'lessee and others lawfully upon the land with the consent of. the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care' (a) .could have discovered the condition and the risk involved, and,(b) pould have made the condition safe."

¶10Under Comment b: "The rule stated in this Section applies to the maintenance of walls, roofs and foundations of an apart*160ment house or office building. It applies also to any other part of the land the careful maintenance of which is essential to the safe use of the rooms or offices or portion of land leased to the various lessees, such as the central heating, lighting, or water system." (emphasis ours)

¶11Pertaining to roofs which we believe are closely analogous to chimneys the following text statement appears in 52 C.J.S. Landlord and Tenant § 417(10) with supporting cases cited in the notes: "Inasmuch as one of several tenants of a building has not the right of access or the right to repair the roof, a landlord of such a building is deemed to be in control of that portion of the building, and, while he is not an insurer of the safety of the roof, he is required to exercise reasonable care to keep it in a reasonably safe condition, and is liable to a tenant for injuries or failure to perform that duty." See Sollars v. Blayney, 31 Ill.App.2d 341, 176 N.E.2d 477.

¶12In our opinion the court correctly determined as a matter of law that the defendant had retained control of the chimney with means of access thereto for use in common by his tenants.

¶13Where the landlord has retained control over a portion of the leased premises for the common use of his tenants, liability depends upon actual or constructive notice of the claimed defect. He may be liable where the defect has "existed for such a period of time as to justify the conclusion that, in the exercise of ordinary care, he should have known of its existence within such time as would have given him a reasonable opportunity to remedy the condition or where by the exercise of reasonable care he could have discovered the defective condition and made it safe. Constructive notice may be implied from the long-continued existence of the defect …". 52 C.J.S. Landlord and Tenant § 417(16); Henry v. First Nat. Bank of Kansas City, 232 Mo.App. 1071, 115 S.W.2d 121; Morris v. King Cole Stores, 132 Conn. 489, 45 A.2d 710. The evidence does not show that either defendant or plaintiff had actual notice of the defect.

¶14*161The important question here is that a constructive notice; that is, whether the condition in the chimney had existed for such a length of time that defendant in the exercise of due care should have discovered it. There is no direct evidence as to the length of time the defect had existed, but the plaintiff urges that the evidence permits an inference that it existed a sufficient length of time that defendant in the exercise of ordinary care should have known of the existence of the condition in time to have reasonable opportunity to repair the same. We believe the jury could so find.

¶15Exhibit 2 supra tends to show that the defect was not of recent origin. A reasonable inference is that it existed when defendant acquired the property which was nearly 18 months before the fire and probably long before that time. The assistant fire chief testified that the bricks were loose and mortar was missing; that he shone a light through the opening and a photograph was taken down the chimney from the first floor fireplace which showed a log and other debris at the base of the chimney. Some references in the testimony indicate that the opening may have been used as a clean out for ashes. After the fire a metal door was placed over it.

¶16The defendant testified he inspected the duplex including the basement and the area around the chimney several times before he purchased the property; that he may have spent about an hour in the basement; that during his ownership and before the fire he likewise was in the basement on a number of occasions and was aware that storm windows, screens, and cloth awnings were stored in the storerooms adjacent to the chimney.

¶17We believe it was a question of fact for the jury to determine whether the defendant in the exercise of ordinary care should have discovered the hazardous chimney condition and the risk involved in time to make reasonable repairs for the safety of his tenants. In our opinion a jury could find an inspection such as ordinary care required would have revealed the *162defect. See Stupka v. Scheidel, 244 Iowa 442, 56 N.W.2d 874; Graeber v. Anderson, 237 Minn. 20, 53 N.W.2d 642.

¶18In West v. Hanley, supra, this court quoted from Reardon v. Shimelman, 102 Conn. 383, 128 A. 705, 39 A.L.R. 287. In the latter case a landlord was held liable when he permitted ice and snow to accumulate upon a common approach to a tenement house. Liability was predicted upon the fact that he knew, or in the exercise of reasonable supervision and inspection ought to have known, of the dangerous condition and failed to exercise reasonable care to guard against injury because of it.

¶19The court instructed by quoting verbatim sections of the Uniform Building and Fire Prevention Codes of the City of Sioux Falls.1 Defendant objected to such instructions which he said are "a correct statement of the law but not applicable" because the evidence did not show any failure to maintain the duplex in a safe condition and no evidence upon which a jury could find that it was maintained in a hazardous condition resulting in the fire that caused plaintiff's damage. For reasons stated supra, we are of the opinion that there was evidence from which the jury could find that defendant was negligent and consequently his objections to said instructions are without merit.

¶20The court also quoted SDC 38.0409, now SDCL 1967, § 43-32-8, in its Instruction No. 9.2 Although the record shows an objection to "instruction number nine" it is apparent there *163was in reality no objection thereto,3 but the objection was intended for Instruction No. 10.4 There is no other objection to No. 10. This assumption is fortified by appellant's brief which contains no reference to or argument upon Instruction 9, but urges error in the giving of Instruction No. 10. It is elementary that on an appeal from a judgment assignments of error which are not discussed or argued in appellant's brief are deemed abandoned. Hutchinson County v. Bender, 64 S.D. 109, 264 N.W. 816. Consequently, Instruction No. 9 requires no further discussion. As to Instruction No. 10, we hold there was no error. It correctly states the applicable law. Requested instructions refused were factually inapposite.

¶21Judgment affirmed.