Katz v. Holsinger

Barnes, J., delivered the opinion of the Court. The appellants, Francis Katz and Clara I. Griffin, the owners and landlords of a second floor apartment with a second story porch located at 1239 West Baltimore Street, Baltimore City (the subject property) — the dé ³⁰⁹ fendants below, appeal from a judgment obtained in the Baltimore City Court (Liss, J.) on May 18, 1971, by the appellees and plaintiffs below, Zella Mae Holsinger, an infant, by Nellie Esther Holsinger (tenant of the second floor apartment), her mother and next friend, and Mrs. Holsinger, for $64,000 and $7,500, respectively, with interest from February 10, 1971 (the date of the verdict), and costs. The verdict for Mrs. Holsinger under Count Two of the declaration for medical expenses and loss of services of her infant daughter was for $15,000, which, however, was reduced to $7,500 by a remittitur granted by the trial judge and accepted by Mrs. Holsinger. The principal questions presented to us are whether the lower court erred (1) in not directing a verdict for the defendants in that (a) there allegedly was no legally sufficient evidence that the defendant landlords had contracted, for a consideration, to repair the tenants’ porch railing, (b) the failure of the landlords to repair the porch railing was not the proximate cause of the accident, and (c) the tenant had waived any contractual right to require the landlords to repair the porch railing and (2) in various instructions to the jury (a) in regard to permanent injury and (b) in regard to the landlords’ duty to repair.

In declining the motion of the landlords for a judgment n.o.v. or, in the alternative, for a new trial, Judge Liss filed a helpful written memorandum. Finding no error, we will affirm the judgments. The jury could have found the following from the testimony. In 1960 Mrs. Holsinger and her husband became tenants of the subject property.

There was no written lease. The rent was paid at first by the week. After the husband died on June 6, 1966, the rent was paid by the month. The only means of access to the subject property was by a wooden stairway in the rear of the premises leading to a porch on the second floor from which access was given to the second floor apartment itself.

The porch was made of wood (as were the steps), with a wooden railing and a number of wooden balusters attached to the wooden railing and to the porch floor. The ³¹⁰ landlords occupied the first floor as a men’s store operated by Mr. Katz. The evidence offered on behalf of the plaintiffs indicated that at the time the subject property was rented in 1960, the landlords — through Mr. Katz — agreed to make the repairs to the subject property as a condition of the tenancy. During the time the husband was living, whenever he made repairs to the subject property, the landlords paid him for making those repairs.

Indeed, Mr. Katz testified on cross-examination that the landlords “did all of the repairs to Mrs. Holsinger’s apartment, inside and outside as part of her tenancy” and that “always throughout her tenancy anything to be done, we always did.” He further stated that he did not expect Mrs. Holsinger to make any repairs to the porch. Mrs. Holsinger testified that she noticed, approximately a week and one-half prior to July 21, 1967, the day of the accident, that two balusters were missing. She tried to put them back in place but was not able to do this because they were rotten. Mrs. Rebecca Nellie Evans, a neighboring tenant, noticed that the balusters were missing about three weeks before the day of the accident.

About a week before the accident, she told Mr. Katz about the situation and told him that if he did not nail boards across the remaining balusters, “we are going to find little Zella Mae laying [sic] on the concrete down below.” Mrs. Evans stated that Mr. Katz replied that he was “going to take care of it just as soon as he got time.” The day before the accident, Mrs. Evans told Mrs. Griffin that she had some nails and a hammer and that she was going to “put a board across there to keep her (the baby Zella, then two years old) from falling out.” According to Mrs. Evans, Mrs. Griffin said that she was not to do this “because Francis [Katz, the other landlord] is going to have it fixed.” On the morning of the accident, Mr. Katz, accompanied by a carpenter, Joseph Dotterweich, went to the porch to repair it. Because other workmen were on the roof ³¹¹ of the building making repairs to it, no repairs were then made, even though Mr. Katz admitted on cross-examination that “it was too serious a thing to put off.” Later on July 21, 1967, the infant plaintiff, Zella, after having been given a piece of pie by her mother, and while her mother was cutting a piece of pie for herself, suddenly went out of the door of the apartment and fell through the hole in the porch railing to the concrete pavement below. She suffered a fracture to her skull and to both wrists. Approximately six months after the accident, Zella suffered convulsions.

She underwent electro-encephalogram tests at the University Hospital which revealed certain brain damage resulting in Zella’s becoming an epileptic. Additional facts will be given when the questions are later discussed. In considering the facts upon the motion of the defendants for a directed verdict or for a motion for judgment n.o.v., we resolve any conflicts of fact in favor of the plaintiffs and give them the benefit of any reasonable inferences deducible from the facts favorable to them. Bosley v. Grand Lodge of Ancient Free & Accepted Masons of Md., 263 Md. 303, 316 , 283 A. 2d 587, 596 (1971) and cases therein cited.

We will discuss the questions raised in the order already indicated. 1 (a) The landlords correctly pointed out to us that at common law there was no implied covenant to repair and no warranty of the fitness of the leased premises for occupancy. As Judge (later Chief Judge) Hammond stated for the Court in Farley v. Yerman, 231 Md. 444, 448 , 190 A. 2d 773, 775 (1963) : “Although at common law there was no implied covenant to repair and no warranty of the fitness for occupancy of leased premises, a tenant now may maintain an action for injuries sustained as a result of an uncorrected defect in ³¹² rented quarters if there was a contractual obligation to repair the particular defect and a reasonable opportunity to correct it. Under these circumstances the landlord has the obligation to use reasonable care to make the needed repairs with reasonable diligence; and if he does not, wilfully or negligently, and harm ensues as a result, there arises a tort liability, subject to the usual rules as to proof of causation and the absence of contributory negligence on the part of the tenant. McKenzie v. Egge, 207 Md. 1, 6-7 .” We cited Farley with approval and followed it in Sacks v. Pleasant, 253 Md. 40 , 251 A. 2d 858 (1969).

We cited Sacks with approval in Kleiman v. Mono of Maryland, Inc., 254 Md. 548 , 255 A. 2d 393 (1969). See 1 Tiffany, Landlord and Tenant § 87, p. 134 (3rd ed. 1939) ; Restatement (Second) of Torts § 357, p. 241 (1965) ; 51C C.J.S. Landlord & Tenant § 366 (1), page 923. The landlords contend that there was insufficient evidence that they had contracted, for a consideration, to make repairs to the subject property, including repairs to the porch. We do not agree with this contention.

The testimony, not only of the tenant, but also by one of the landlords, was sufficient to present a jury issue in regard to the making of an agreement by the landlords with the tenants to repair the subject property as part of the original oral lease and supported by the consideration of that original leasing of the premises, as well as in regard to the landlord having sufficient notice of the particular defect and a reasonable opportunity to repair it. 1 (b) The landlords next contend that, assuming for the argument that an enforceable contract to repair exists, nevertheless the failure of the landlords to repair the porch railing was not a proximate cause of the accident on the theory that the mother’s allegedly negligent fail ³¹³ ure to prevent the infant Zella from going out on the porch — although not imputed to the infant from the fact of parenthood or custodianship by virtue of the provisions of Code (1969 Replacement Vol.) Art. 75, § 2 —was so extraordinary in the situation as to constitute a superseding cause of Zella’s injuries, relying, in part, on the Restatement (Second) of Torts, supra, § 447, comment g at p. 480, as well as on Farley v. Yerman, supra, 231 Md. 444 , 190 A. 2d 773 (1963) and Barnes v. Housing Authority, 231 Md. 147 , 189 A. 2d 100 (1963). In our opinion, Farley v. Yerman is dispositive of this issue contrary to the contention of the landlords. As in the present case, Farley involved a young child (four years of age) of a tenant. The landlord urged that his negligence, if any, was merely passive and potential while the failure of the parents to make physical arrangements which would have prevented access to the flames of a gas log or to keep their children far enough away from them to prevent the accident was the moving and effective cause of the harm which made their negligence the only proximate cause of the injury.

Judge (now Chief Judge) Hammond, stated for the Court: “We think the rule urged upon us is not applicable here. The landlord not only knew of the danger in the abstract but in the context of the almost continual presence of very young children in close proximity to the danger. He cannot disclaim realization that the parents might not be able to do more than they did, or that they would not do more, or that their acting as they did was not to be deemed so unusual or extraordinary as to be unreasonable or, finally, that the foreseeable acts or omissions of the parents would be but normal responses to a situation created by his own conduct. “All this being so, any negligence of the parents was not a superseding cause of the harm ³¹⁴ which the landlord’s negligent conduct was a substantial factor in bringing about. Restatement, Torts, Sec. 447.

See also Sec. 452.” “In McKenzie v. Egge, supra, (at page 11 of 207 Md.) the Court, in rejecting the landlord’s claim that the adult tenant was guilty of contributory negligence or assumption of risk, as a matter of law, in using the defective and dangerous porch of which she had complained and which collapsed and injured her, adopted Sec. 473 of Restatement, Torts: ‘If the defendant’s negligence has made the plaintiff’s exercise of