Rossow v. Jones ( 1980 )

GARRARD, Presiding Judge.

This is a slip and fall case wherein a tenant (Jones) sued his landlord (Rossow) for personal injuries. The undisputed facts disclose that Rossow owned a house which had been converted into a three apartment dwelling. All apartments exit through a single outside door onto a porch. Three concrete steps lead from the porch to the sidewalk.

On December 26, 1975, Jones, who had occupied one of the apartments since September, slipped and fell on the steps as he was attempting to leave the house to go to the grocery. At the time, the steps were covered with a natural accumulation of ice and snow.

Jones brought this suit for personal injuries in small claims division and recovered judgment for $2500. Rossow’s appeal contends that he breached no legal duty to Jones and that Jones was guilty of contributory negligence as a matter of law.

The question of the landlord’s duty is argued in terms of whether Purcell v. English (1882), 86 Ind. 34 correctly states the law. In Purcell a tenant slipped upon a snow and ice covered common stairway and fell to the ground below when a railing which had become loose and rotten gave way. On appeal the Supreme Court affirmed a directed verdict against the injured tenant stating that where a common stairway “is rendered unsafe by temporary causes, such as the accumulation of snow and ice, the landlord is not liable to the tenant who uses such stairway with full knowledge of its dangerous condition, unless there is a contract on the part of the landlord to keep the premises in repair and fit for safe use.” 86 Ind. 42.

Although the Purcell court discounted any distinction based upon whether the area in question was a way common to two or more tenants, in LaPlante v. LaZear (1903), 31 Ind.App. 433, 68 N.E. 312 the appellate court permitted recovery by a tenant for a fall occasioned when a latent defect caused a step to break. The court distinguished Purcell on the basis that it concerned a temporary covering of snow and ice and because the opinion had expressly excluded the consideration of latent defects from the decision. In LaPlante the court stated that a landlord did owe a duty to exercise reasonable care to make the premises reasonably fit as to common passageways and approaches retained under the landlord’s express or constructive control.

This same viewpoint was subsequently acknowledged by our Supreme Court in a case dealing with a tenant who was injured when he fell down an elevator shaft in an apartment building. Tippecanoe Loan & Trust Co. v. Jester (1913), 180 Ind. 357, 101 N.E. 915. See generally 49 Am.Jur.2d, Landlord & Tenant § 805.

More recently, in Coleman v. DeMoss (1969), 144 Ind.App. 408, 246 N.E.2d 483, the appellate court relied upon the rule announced in LaPlante where there was no multi-tenant dwelling, but the evidence disclosed that the means of ingress and egress to the tenant dwelling, which was located behind the landlord’s residence on the same tract of real estate, was under the actual control of the landlord and across land under his exclusive control.

Finally, we note that in Hammond v. Allegretti (1974), 262 Ind. 82, 311 N.E.2d 821 (Givan, J., and Prentice, J., dissenting) the Supreme Court held that the duty of reasonable care owed to a business invitee does not admit to an exception or reduction in its scope based upon “[a] natural accumulation of ice and snow.”

From these authorities we conclude that a landlord does have a duty of reasonable care that the common ways and areas, or areas over which he has reserved control, are reasonably fit and that hazards created through a natural accumulation of ice and snow are not beyond the purview of that duty.¹

In turning to the facts before us, we note at the outset that they are disputed throughout and there are inconsistencies even within the testimony of a particular witness. These, however, are matters beyond the power and purpose of our appellate review. So long as it is not without probative value, we may look only to that evidence which favors the result reached by the trial court. That evidence revealed the following: There had been a hand rail along the steps from the porch to the walk, but the landlord had removed it sometime before the month of December. In addition there had been snow shovels and a box of salt available for cleaning the entryway but these had been locked away by the landlord and Jones could not use them. Moreover, on two or three occasions prior to Jones’ injury, Rossow had shoveled the snow from the walkway. However, prior to Jones’ fall the ice and snow had been accumulating for a week. During this time the steps were not shoveled. From this evidence the court could have concluded that the landlord failed in his duty to exercise reasonable care that the common stairway was reasonably safe and fit.

The question is closer concerning the allegation that Jones voluntarily incurred the risk and was guilty of contributory negligence as a matter of law. The rule is stated in Stallings v. Dick (1965), 139 Ind.App. 118, 125, 210 N.E.2d 82, 86,

“. . . [T]he voluntary conduct of one exposing himself to dangers which are so obvious, imminent and glaring that no reasonable man exercising due care for his safety would have hazarded them is negligence as a matter of law.”

See also Meadowlark Farms, Inc. v. Warken (1978), Ind.App., 376 N.E.2d 122.

Yet if reasonable minds could differ, the question is for the trier of fact and we may not reverse on appeal.

Here the evidence most favorable to Jones discloses the snow and ice had been accumulating for a week and he well knew of their existence. On the evening in question it was still light enough to see; Jones wore leather boots with rubber soles and attempted to steady himself by a porch column as he descended the steps. There was no evidence that Jones had slipped on the steps before or had seen others slip. Moreover, while the ice and snow had been accumulating for several days, there was no evidence specifically addressing the slipperiness of the steps during this period and whether it remained the same or was worse on the day of the incident.

Clearly, the fact finder could have found that Jones was guilty of contributory negligence. However, from the state of the evidence we are unable to say that any reasonable mind considering the evidence would be required to conclude that Jones failed to exercise ordinary care in attempting to descend the steps that evening. Under such circumstances the result is not contrary to law.

Rossow’s final contention is that the damages were excessive. It is well settled that the amount of damages awarded will not be deemed excessive if it is within the scope of the evidence before the court. Moreover, where general damages occur for such matters as pain and suffering or bodily impairment, the award may not be set aside unless it appears outrageous or the product of bias and prejudice. See, e. g., Cooper v. High (1974), 262 Ind. 405, 317 N.E.2d 177.

The evidence favorable to Jones discloses special damages of approximately eight hundred fifty ($850) dollars. In addition, there was evidence of pain and suffering related to low back injury that persisted at the time of trial. From the evidence we cannot say the damages were excessive.

The judgment is, therefore, affirmed.

HOFFMAN, J., concurs. STATON, J., concurs and files separate opinion.

1 . In Orth v. Smedley (1978), Ind.App., 378 N.E.2d 20 the court held that upon the facts before it the plaintiff was not entitled to recover because there was no reasonable opportunity for the landlord to have made the way safe between the time it became hazardous and the time plaintiff was injured.