Mondey v. Continental Realty Co.

The conclusion reached by Mr. Justice McALLISTER is one with which I am not in accord. As stated in his opinion, the plaintiff in this case alleges two grounds upon which she seeks recovery. In brief they are: (1) that defendant's employee without plaintiff's knowledge cleaned the floor in the space rented from defendant by plaintiff, that the employee negligently performed the work by leaving dirty, soapy water upon the linoleum-covered floor, and thereby caused the floor to be "exceedingly slippery and highly dangerous to walk upon" resulting in plaintiff's injury; and (2) that defendant's employee "carelessly, recklessly and negligently failed to notify the plaintiff that they (she) had mopped the floors of her said place of business at the time and place aforesaid." The trial judge submitted, and we think in a fair manner, the first of these two issues to the jury. It involved both defendant's alleged negligence and plaintiff's contributory negligence. Notwithstanding the testimony of plaintiff and some of her witnesses to the contrary, the jury found in favor of defendant. By this verdict of the jury, the first ground upon which plaintiff seeks recovery was eliminated. Therefore this appeal should be disposed of in this court upon the assumption that defendant's employee, who did the cleaning on the evening of plaintiff's accident, was not guilty of any negligence in the manner in which she performed this service, or that plaintiff was guilty of contributory negligence.

If plaintiff was guilty of contributory negligence she cannot recover. So the only remaining question for consideration is whether plaintiff was entitled to notice that her floors had been cleaned by defendant's employee, or, stating it in another way, did the employee's failure so to notify plaintiff constitute actionable negligence. The trial judge did not submit this issue to the jury. The matter for decision on this appeal is whether under the circumstances of this case we should hold that in not submitting the issue to the jury the trial judge committed error.

We think it may be stated as a general proposition of law that merely mopping or cleaning a floor in the regular discharge of a landlord's duty to his tenant and leaving the floor in its normal condition after such cleaning does not create a dangerous condition of which the landlord is bound to give the tenant notice. It is elementary that except an unusually dangerous condition is created by an act of the landlord or his employee, there is no duty on the part of the landlord to notify a tenant of a change in condition.

"Where he (landlord) has created no nuisance, and is guilty of no wilful wrong or fraud or culpable negligence, he incurs no liability for any injury suffered by any person occupying or going on the premises during the term of the demise." 16 R. C. L. p. 1034.

"An owner in treating a floor may use wax or oil or other substance in the customary manner without incurring liability to one who slips and falls thereon, unless the owner is negligent in the materials he uses or in the manner of applying them." Smith v. Union New Haven Trust Co.,121 Conn. 369 (185 A. 81).

Under this record it must be held that on the occasion of plaintiff's injury the failure of defendant's employee to notify plaintiff that the floor had been cleaned was not a failure to perform any duty which the landlord owed the plaintiff. Even under plaintiff's theory it seems clear that the proximate cause of her accident was the alleged negligent manner in which the cleaning was done, not the fact that it was done without plaintiff's knowledge. The latter is a mere incident bearing more particularly upon plaintiff's contributory negligence. But the jury's verdict is conclusive that plaintiff was guilty of contributory negligence or that the work was done in a proper manner. As before stated, in the event plaintiff was contributorily negligent she cannot recover; and if on the other hand there was no negligence in the manner of cleaning, a new and dangerous condition was not created, and hence there was no occasion for warning or notifying plaintiff. The circuit judge was not in error in holding that plaintiff was not entitled to notice unless the cleaning was negligently done.

Union News Co. v. Freeborn, 111 Ohio St. 105 (144 N.E. 595), cited by Justice McALLISTER, is, to say the least, an extreme case. It cites no sustaining authority. It seems to be out of step with many other decisions involving similar facts. See Narregang v. Great Atlantic Pacific Tea Co., 224 Mich. 178; Ziegler v.Western Union Telegraph Co., 319 Pa. 274 (179 A. 45); Curtiss v. Railroad Co., 233 N.Y. 554 (135 N.E. 915); J. C. Penny Co., Inc., v.Robison, 128 Ohio St. 626 (193 N.E. 401, 100 A.L.R. 705); Walker v. Broad Walnut Corp., 320 Pa. 504 (182 A. 643). In any event Union News Co. v.Freeborn, supra, is to be distinguished from the instant case in that the Freeborn Case arose out of an accident in a railroad depot which the public in general on invitation frequented and usually under somewhat hurried and distracting circumstances. On this account it might well be held that a greater degree of care as to safe condition should be required of the proprietor than is required of an ordinary landlord for the safety of his tenant. Further, the plaintiff in the Freeborn Case was expressly directed by defendant's employee, and without warning, to pass over the slippery portion of the depot floor, which had been put in that condition since plaintiff had just momentarily before passed over it. This latter circumstance seems to be the basis for the court's holding that there was evidence of "active negligence on the part of defendant in placing before plaintiff a new situation of danger."

None of the other grounds of error asserted by appellant are sufficient to justify reversal. The judgment entered in the circuit court is affirmed, with costs to appellee.

WIEST, C.J., and BUSHNELL, SHARPE, POTTER, and CHANDLER, JJ., concurred with NORTH, J.