Messier v. Szymkiewicz

Joslin, J. Following a jury-waived trial in the Superior Court, judgment was entered awarding the plaintiff, Theresa Messier, damages for physical injuries sustained when she slipped and fell on a stairway in premises owned by the defendant’s intestate, Bella M. Harris. In a companion case a judgment was entered for the plaintiff’s husband for medical bills. The defendant appealed in both cases. About 1960, plaintiffs rented a furnished top-floor apartment in a three-story tenement building owned by Bella. A single stairway provided the only means of access to and from the top floor. The stairs were covered by small rubber mats that originally had been secured to the stair treads. By 1963, however, the mats were in various stages of disrepair and some were no longer secured to the stairs. Late one night, in June of that year, as she was proceeding down the stairs to let out the family dog, Theresa tripped on a loose rubber mat covering one of the stairs and fell, injuring [520] her back.1 The case was tried and was decided in the Superior Court on the theory that the stairway on which the fall occurred was a common stairway provided by Bella for the common use of her tenants, that it was under her control, and that she knew that some of the rubber mats were loose. The plaintiff, Theresa, also knew the condition of the mats because she frequently swept the stairs and on such occasions would pick up the loose mats, sweep under them, and then replace, but not secure, them to the steps. The parties agree that the proximate cause of the fall was a loose rubber mat. The rule of law applied by the trial justice was that a possessor of property who rents portions thereof to others, but retains control of a stairway that used in common by all tenants, is under a duty to keep that stairway in a reasonably safe condition for its prospective use by such tenants and is responsible to tenants for injuries resulting from a breach of that duty. Robitaille v. Brousseau, 115 R.I. 27, 29, 339 A.2d 738, 740 (1975); Reek v. Lutz, 90 R.I. 340, 344, 158 A.2d 145, 147 (1960). In order to recover for such a breach, however, a tenant must establish his own freedom from contributory negligence.2 Whether he has established that freedom is usually a question for the factfinder, Nelson v. Grilli, 117 R.I. 538, 540, 368 A.2d 1234, 1236 (1977); McVeigh v. McCullough, 96 R.I. 412, 422, 192 A.2d 437, 443 (1963), which becomes a question of law when the facts “warrant only one con [521] elusion,” 117 R.I. at 540, 368 A.2d at 1236 or “are such that a person of ordinary prudence would instantly perceive what to do or what to refrain from doing * * *.” Floyd v. Turgeon, 68 R.I. 218, 224, 27 A.2d 330, 334 (1942). In this case, however, we need not reach the issue of whether Theresa was contributorily negligent as a matter of law. Instead, our concern is limited to the trial justice’s determination that she was not contributorily negligent as a matter of fact. On that question, the trial justice’s finding, like his findings on other factual issues, is entitled to great weight and will not be disturbed by us absent a showing that he misconceived or overlooked material evidence or that he was clearly wrong. Ambrosino v. Bevilacqua, 118 R.I. 369, 375 A.2d 404 (1977); Agar Supply Co v. David-Hodosh Co., 115 R.I. 80, 84, 340 A.2d 140, 142 (1975). A finding is clearly wrong when, “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746, 766 (1948); State v. LaRose, 112 R.I. 571, 313 A.2d 375 (1974); State v. Leavitt, 103 R.I. 273, 237 A.2d 309 (1968). We are left with such a firm conviction in this case. This case does not involve merely a landlady who, knowing or chargeable with knowledge of a dangerous condition involving loose mats on a common stairway in her building, fails to remedy that condition. If the landlady’s failure to act in this circumstances were the only negligence involved here, then we would agree with the trial justice and with the dissent in this case that Thesesa’s continued use of the stairway, even though she knew of the loose mats, would not constitute contributory negligence because the stairway provided the only means of reaching the apartment. See generally Kanelos v. Kettler, 406 F.2d 951 (D.C. Cir. 1968); Morehead v. Mayron, 3 Ill. App. 2d 425, 379 N.E.2d 473 (1972); Rush v. Commercial Realty Co., 7 N.J. Misc. 337, 145 A. 476 (1929) (assumption of the risk); Dollard v. Roberts, 130 N.Y. 169, 29 N.E. 104 (1891). [522] Here, however, the dangerous condition was at least in substantial part created by Theresa, who only a day or two before she fell, removed the loose mats from the stairs, swept the stairs, and then replaced the mats. She may not have been under an obligation to secure the mats to the stairs, but, certainly, if she had acted with a modicum of ordinary prudence and concern for her own safety, she should have instantly perceived that replacing loose mats on the stairs created an undue risk of harm. Moreover, it was that very hazard that caused her to fall and resulted in her injury. When we view her conduct in this light, we are left with the certain and firm confiction that the trial justice mistakenly concluded that Theresa’s continued use of the stairway did not constitute contributory negligence. In each case the defendant’s appeal is sustained, and the judgment appealed from is reversed. Each case is remanded to the Superior Court. Footnotes [1] The present action was commenced in 1964 but, for reasons not clear from the record, was not tried until 1977. During the period that this matter was pending, the comparative negligence statute, G.L. 1956 (1969 Reenactment) §9-20-4, as amended by P.L. 1972, ch. 18, §1, was enacted. That statute, however, applies only to actions brought subsequent to its enactment. [2] Since this is a case where Theresa entered freely and voluntarily into a situation in which the defendant’s negligence was obvious, the controlling principle was assumption of the risk and not contributory negligence. Prosser, Torts §68 at 439-57 (4th ed. 1977); see Kennedy v. Providence Hocky Club, Inc., 119 R.I. 70, 376 A.2d 329 (1977); D’Andrea v. Sears, Roebuck & Co., 109 R.I. 479, 287 A.2d 629 (1972). The case was tried and decided in the Superior Court and was argued in this court, however, on the theory of contributory negligence and we consider it on that basis.