Binnicker v. Adden

May 11, 1944. The appeal is from an order sustaining a demurrer to the complaint. The latter contained allegations that defendants owned a block of store buildings in the business district of the city of Orangeburg which were set back about six feet from the sidewalk, the intervening strip of land being the property of the defendants.

Over this strip defendants constructed separate cement walkways to each of the stores, about three feet wide, which slanted up to the entrances to the buildings, which three-foot cement entrance walkways were used by the public for access to the stores, and by the merchants occupying the latter. It was further alleged that the plaintiff undertook on March 6, 1943 to enter one of the stores to purchase groceries and as she stepped from the sidewalk to the cement walkway leading to that store, which defendant had constructed for the purpose, her foot was caught in a hole where the cement had broken and had been removed, and she suffered painful injuries. Further it was stated in the complaint that the walkway was constructed too thin and, after use, cracked and, in effect, disintegrated.

In the seventh paragraph it was alleged that defendants knew of this condition of disrepair and unsafety and that it was dangerous for the public and the plaintiff to try to use it, but, quoting, "that regardless of such knowledge, the defendants continue to invite, hold out and permit, the said walkway to be used in said dangerous condition;" then, in the eighth paragraph, that the said actions of the defendants were negligent, willfull, without regard to the rights of the plaintiff and the public, wherefore plaintiff was damaged in the sum of $1,500.00.

The defendants demurred upon several separately stated grounds, the gravamen of which was that the complaint failed to allege any legal duty owed by the defendants to the plaintiff, the breach of which gave rise to her alleged damages, and (paragraph III of the demurrer) that it appeared from the complaint that the walkway on which plaintiff was injured was a part of the premises rented by the defendants to the tenant who used it as such; and that no covenant by defendants to repair was alleged, which latter however would not be sufficient to give rise to an action by plaintiff for the injuries alleged.

The order whereby the demurrer was sustained states the issue as follows: "By the demurrer, the defendants raise the issue as to the right of the plaintiff to sue them as owners of the leased property." This statement of the issue shows that it was assumed by the court that the cement walkway whereon plaintiff was injured was a part of the leased property. It is further stated in the order, with reference to the defendants, as follows:

"They own the interior and the exterior of the rented premises, but it is all in the exclusive possession of the tenant and his customers, and the tenant alone is liable for the negligent lack of care of the property which is all under his control, and is not subject to the control of the defendants in any legal sense."

The foregoing excerpts from the order under appeal show that the court really decided what it deemed to be the issue on demurrer raises legal issues, admitting the allegations and proper factual inferences of the pleading against which it is taken. S.C. cases in 27 S.E. Dig., p. 265 and pocket part, Pleading, Key 214 (4). Liberal construction of the complaint in this action, required under our procedure, 1942 Code, Sec. 477, discloses allegations of fact which are fairly susceptible of the inference that the defendants had not leased the walkway upon which plaintiff was injured. It was alleged that the stores had been constructed and leased and that the walkway were at the front of them and had been constructed on their property by the defendants for the use of their tenants and the public for access to the store buildings. Other pertinent allegations of the complaint are stated hereinabove.

The fact referred to, whether the offending walkway was or was not leased to the tenant as a part or appurtenance of the store building, is ordinarily controlling of the rights of the parties to the action and in view of the contents of the complaint, liberally construed in favor of plaintiff, there was error in undertaking to decide this controlling fact upon demurrer. 16 R.C.L., 1072; 20 R.C.L., 73; 32 Am. Jur., 568; annotations in L.R.A., 1916-F, 1118; 11 A.L.R., 109; 25 A.L.R., 1279-80; and 39 A.L.R., 295-6.

The latter annotations and their supplements (75 A.L. R., 160 and 97 A.L.R., 224) relate in the main to the well-known liability of a landlord for the maintenance of a facility for the common use of several tenants but all of such cases depend upon the test here applied, — whether the landlord has retained possession and control of the offending premises. An example of this extensive line of cases is our ownMedlock v. McAlister, 120 S.C. 65, 112 S.E., 436, involving an elevator in the common use of several tenants.

The tenant alone might be liable for the negligent repair alleged if the walkway in this case was included in the rental agreement, but if the landlords retained control and possession of it, the complaint states a cause of action against them. Such, in effect, was said by Acting Associate Justice J. Henry Johnson in his excellent opinion for this court in Timmons v. Williams Corp., 164 S.C. 361,162 S.E., 329, 333, as follows: "Because possession and control are reserved unto the lessor, the law implies an obligation, creates a legal duty, to keep the same in repair, and to operate it properly. This is in accord with the general rule that there is an implied duty on the part of the landlord to keep in repair all portions of demised premises of which he reserves possession and control for the common use of several tenants, and is peculiarly applicable to halls, stairways, elevators, and other approaches of which no particular tenant has exclusive possession and control. 36 C.J., 212, 213."

The closest case in facts to that in hand which we have found is referred to in 97 A.L.R., 223, as follows: "InHurlburt v. Sherman, 1933, 116 Conn., 102, 163 A., 603, where a building on a street corner contained two stores with concrete walks leading to both stores from the public sidewalk, and the owner contended that he had no control over the walks and that they were not in common use by a number of tenants, the court ruled that, whether the walk on which a store customer slipped and fell was under the landlord's control was a question of fact, and that the jury might well have found (it having allowed damages) that all the space between the building and the sidewalk was used as a common approach to both of the stores."

Similarly, the instant case does not depend on the common use of the walkway by defendants' several tenants for such is not alleged, but upon the underlying or key fact of whether the defendants, the landlords, retained in their possession, and under their control, the allegedly negligently defective walkway.

Volume 2, Restatement of the Law of Torts, p. 976, Section 360, states the applicable rule in the following language:

"A possessor of land, who leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sub-lessee for bodily harm caused to them 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 could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe."

The judgment is reversed and the demurrer overruled, with leave to defendants to answer within twenty days after the filing of the remittitur in the office of the clerk of the lower court.

Reversed.

MESSRS. ASSOCIATE JUSTICES FISHBURNE, TAYLOR and OXNER concur.