Dora L. Levine v. Dr. Harold H. Katz and Shannon & Luchs Company

407 F.2d 303, 132 U.S. App. D.C. 173, 1968 U.S. App. LEXIS 6961

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 14, 1968
• Docket: 21145_1
• Status: Published

Opinions

PRETTYMAN, Senior Circuit Judge:

This is a civil action for damages by reason of negligence. Appellant-plaintiff slipped on a small strawlike mat, lying without adhesive undercoating on a highly polished floor, while entering the lobby of a multi-family apartment house. In leasing, the landlord had reserved to his own control the halls and other parts, of the premises designed for the common use and convenience of all of the tenants. Plaintiff and her husband were on a visit to their grandchildren (granddaughter and husband), tenants in the apartment house. This was a customary Saturday afternoon family occurrence and followed some telephone conversation between the ladies. Before plaintiff completed her evidence, the trial court directed a verdiet for defendants upon the ground that plaintiff was a mere licensee and consequently the landlord was under no duty to exercise reasonable care for her safety. We think the court erred in that determination, and accordingly we vacate the judgment and remand.

It has long been well settled in this jurisdiction that, where a landlord leases separate portions of property to different tenants and reserves under his own control the halls, stairs, or other parts of the property for use in common by all tenants, he has a duty to all those on the premises of legal right to use ordinary care and diligence to maintain the retained parts in a reasonably safe condition.¹ The apartment house in the case at bar was across the line in suburban Maryland, and the rule of law in that jurisdiction has long been the same as in the District.² The Court of Appeals of Maryland in 1959, in a unanimous opinion written by Judge Hammond, carefully stated the matter with succinct explanation and extended citations.³ He said in part:

“Where a landlord leases separate portions of a property to different tenants and reserves under his control halls, stairways or other parts of the property for use in common by all the tenants, he must use ordinary care and diligence to maintain the retained parts in reasonably safe condition. [Citing cases.] The duty stems from the responsibility engendered in the landlord by his having extended an invitation, express or implied, to use the portions of the property retained by him. [Citations.] Such an invitation extended to a tenant includes the members of his family, his guests, his invitees and others on the land in the right of the tenant. [Citations.]”

In 1964 the Maryland court unanimously iterated the rule, saying, “There is no doubt in Maryland that [the landlord reserving control over parts of the property] must then exercise ordinary care and diligence to maintain the retained portions in a reasonably safe condition.” ⁴

In the case before us the trial court cited, quoted, and expressly relied upon the Maryland case of Levine v. Miller.⁵ The record there disclosed that the landlord maintained an empty and locked recreation room, the key to which was given to the tenants upon request. On the occasion in question a little girl, having been granted permission to use the room, left the door open, returned the key, and thereafter returned to the room without permission and was injured. We think that case is inapposite. The child in that case was on the premises at the time without permission. The case at bar falls within the ambit of the long line of cases which have repeatedly held that the landlord owes a duty of due care to all those on the premises of legal right.

Reversed and remanded.

1 . Wardman v. Hanlon, 52 App.D.C. 14, 17, 280 F. 988, 991 (1922); Pessagno v. Euclid Inv. Co., 72 App.D.C. 141, 112 F.2d 577 (1940); Walker v. Dante, 61 App.D.C. 175, 58 F.2d 1076 (1932); Nielsen v. Barclay Corporation, 103 U.S.App.D.C. 136, 255 F.2d 545 (1958); Lord v. Lencshire House, Ltd., 106 U.S.App.D.C. 328, 272 F.2d 557 (1959); Daisey v. Colonial Parking, Inc., 118 U.S.App.D.C. 31, 33, 331 F.2d 777, 779 (1963). See also Restatement (Second) of Torts § 360 (1965):

“A possessor of land who leases a part thereof and retains in his own control 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 * * * for physical harm caused by '& 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.” (Emphasis supplied.)

And see Harper and James, The Law oe Torts § 27.17 (1956):

“The duty owed by a landlord to his, tenants and their visitors with respect to common hallways, approaches and the like, which the landlord retains in his possession for the use of his tenants, * * * is the full duty of reasonable care to make conditions reasonably safe * *

2 . Ross v. Belzer, 199 Md. 187, 190, 85 A.2d 799 (1952); Seaman v. State, 213 Md. 359, 366, 131 A.2d 871 (1957); Elmar Gardens, Inc. v. Odell, 227 Md. 454, 177 A.2d 263 (1962).

3 . Landay v. Cohn, 220 Md. 24, 150 A.2d 739 (1959).

4 . Langley Park Apartments, Sec. H., Inc. v. Lund, 234 Md. 402, 199 A.2d 620 (1964).

5 . 218 Md. 74, 145 A.2d 418 (1958). It is to be noted that the opinion in this case was written by the same judge who wrote in Landay v. Cohn, supra note 3.