McIntosh v. Greenway Apartments, Inc.

HOOD, Associate Judge. Appellant slipped and fell one morning as she was descending the stairway in the apartment house where she lived. She sued appellee corporation, her landlord, for negligently maintaining the safety of the common stairway. At the close of her case the trial court directed a verdict in favor of the landlord. Appellant claims that her evidence warranted submission of the issue of negligence to the jury. Appellant’s evidence showed that after she fell, and was helped back to her apartment by her roommate,1 the latter returned to the hallway and found a dark brown banana peel on a step of the stairway. Though appellant had not seen the peel until her roommate returned and showed it to her, she insisted that it had caused her to slip and fall. Appellant offered no evidence to show how or when the peel was left on the step; but she testified she had complained to the apartment employees of other litter in the hallway about six times in the two and one-half years she had lived in the apartment house. Her last complaint had been made three months before the accident. There was also testimony that tenants carried their trash downstairs to a basement receiving room as no pick-up — 352 — service was provided by the apartment management. As appellant could not prove that the banana peel had been dropped by, or that its presence had come to the notice of, any of the landlord’s employees, it was incumbent upon her to prove that the peel had been upon the step long enough to give the landlord constructive notice of its potential danger to tenants. Brodsky v. Safeway Stores, Inc., 80 U.S.App.D.C. 301, 152 F.2d 677, affirming this court’s decision in 41 A.2d 514. The Brodsky case dealt with a customer in a store, but the requirement of notice is equally applicable to a landlord. Lord v. Lencshire House, Ltd., 106 U.S.App.D.C. 328, 272 F.2d 557, and cases there cited.2 Appellant argues that a jury could properly infer from the dark brown color of the banana peel that it had been on the step a sufficient length of time to give the landlord constructive notice. We disagree. Appellant’s argument assumes, without any proof to that effect, that the peel was of a light color when first dropped on the step and that it remained there long enough to darken. That is a possibility, but it is also possible that the peel had darkened before it was dropped. It could have been dropped from another tenant’s trash receptacle a few minutes before appellant fell. Appellant’s case at its best shows only that she slipped on a banana peel on the stairway and fell and was injured. Without some proof, direct or circumstantial, of how the peel came to be on the step or how long it had remained there, a jury could find liability -on the part of the landlord only by guess and conjecture; and guess and conjecture will not support a verdict. Kenney v. Washington Properties, Inc., 76 U.S.App.D.C. 43, 128 F.2d 612, 146 A.L.R. 1.3 Affirmed. Footnotes [1] The roommate was not a witness at the trial. [2] See also Annotation, 25 A.L.R.2d 364, 429. [3] See also Windham v. Atlantic Coast Line R. Co., 5 Cir., 71 F.2d 115; Livingston v. Atlantic Coast Line R. Co., 4 Cir., 28 F.2d 563; McBreen v. Collins, 284 Mass. 253, 187 N.E. 591. But see Williamson v. F. W. Woolworth Co., 237 Miss. 141, 112 So.2d 529.