Home/Michigan Supreme Court/Kroll v. Katz

Kroll v. Katz

132 N.W.2d 27, 374 Mich. 364, 1965 Mich. LEXIS 334
CourtMichigan Supreme Court
DecidedJanuary 5, 1965
DocketCalendar 32, Docket 49,972
StatusPublished
Cited by104 cases

This text of 132 N.W.2d 27 (Kroll v. Katz) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kroll v. Katz, 132 N.W.2d 27, 374 Mich. 364, 1965 Mich. LEXIS 334 (Mich. 1965).

Opinions

Kavanagh, C. J.

Plaintiff brought this action in August, 1959, to recover for injuries sustained by him on August 4, 1958. He was instructed by his employer to go to a house on West Hancock street in the city of Detroit to make plumbing repairs, which had been requested by defendant. On arrival at the vacant house, plaintiff noticed water running over the bathroom floor. While going to the basement to turn off the water, one of the wooden steps leading to the basement cracked under him. Plaintiff lost his balance and, in attempting to regain it, he lunged toward the bottom step. The bottom step was missing. He fell, twisted his ankle, and injured his back and head severely.

Plaintiff’s declaration alleged that his injuries were the result of defendant’s negligence in that:

[367]*367“(a) Defendant failed to maintain an adequate and safe stairway for access to and from the basement.
“(b) Defendant failed to supply adequate lighting over the stairway, thus increasing the unknown hazards of the stairway.
“(c) Plaintiff was an invitee on the premises, thus defendant had a duty to discover dangerous defects and either repair them or give plaintiff adequate warning.
“(d) Defendant breached his duties to plaintiff invitee and said breach was the cause in fact and the proximate cause of plaintiff’s injuries.”

Defendant answered denying ownership of the premises and denying the other allegations. He denied knowledge that a step was missing. He affirmatively asserted the defense of contributory negligence.

The case was tried to a jury, which returned a verdict for plaintiff in the amount of $8,000.

Defendant made a motion for directed verdict both at the end of plaintiff’s proofs and at the conclusion of the trial. The trial court reserved these motions under the Empson act.

In his charge to the jury the trial court ruled that plaintiff was an invitee of defendant, who, as vendor of the house under a defaulted land contract during the period of redemption, was in control and possession of the premises. The trial court granted defendant’s motion for judgment non obstante vere-dicto. In a written opinion the court held that plaintiff had not shown knowledge on the part of defendant as to the missing step, and that there was nothing-in the record to show when this step was removed. He then cited the fact plaintiff’s employer had made no mention of any missing step a day or 2 before [368]*368the accident when he had gone down the same stairs,, considered further the testimony of defendant and. a defense witness that they did not know the step* was missing, and stated:

“Considering the fact that plaintiff’s employer' had made no mention of any missing step a day or 2 before the accident, and considering further the testimony of the defendant and his witness Mitnick,, the only inferences that can be drawn therefrom lead, to the conclusion that the step had n'ot long been missing. The evidence presents no interval of time1 during which it can be said that the defendant had the opportunity to observe this condition and correct it.”

The trial court then concluded:

“The mere existence of defects or of a dangerous" condition is not enough to establish the liability of the defendant unless it is also shown that such defects or condition were of such a character or had existed for such a period of time that the jury might reasonably conclude that by the use of due care the defendant would have discovered such defects or danger and taken the necessary action to correct the-defects and remove the danger. The proofs presented to the jury were completely lacking in this regard and did not permit a conclusion or finding-on the part of the jury that the1 defendant knew, or should have known, of the conditions, to-wit: the-step which broke and the missing step, that eaused the plaintiff’s fall and his resulting injuries.”

From judgment in accordance with this opinion, plaintiff appeals.

One question is presented by plaintiff:

“Considering the evidence in the light most favorable to the plaintiff, is there any evidence of negligence to support the unanimous -verdict of the jury?”

[369]*369That the above question is determinative of the appeal is evident by reference to Sparks v. Luplow, 372 Mich 198, where this Court stated (p 202):

“It is a well-settled principle of law that on review of a trial court’s refusal to grant a motion for a directed verdict or judgment non obstante vere-dicto, the facts are reviewed in the light most favorable to plaintiff. Tacie v. White Motor Co., 368 Mich 521, 527. The test used is whether from the facts in the light most favorable to plaintiff, reasonable men could honestly reach a different conclusion. If the answer to this is ‘yes,’ the question is for the jury. Anderson v. Gene Deming Motor Sales, Inc., 371 Mich 223.”

That rule applies likewise on review of the granting of such a motion.

The favorable-to-plaintiff view of the evidence in this case reveals these facts and proper inferences: defendant admittedly descended the subject stairs shortly before the accident to inspect the basement and looked closely enough to find plumbing and electrical fixtures missing and discovered that the basement was dark; plaintiff’s exhibit 2 (the photograph included herein, which was testified to by plaintiff as representative of the condition at the time of the accident, except that a thicker plank had replaced the broken second step), indicates graphically the angle of the stairs, the thinness of the treads, the absence of a handrail, and the irregularity of vertical distance between treads of the stairs, caused by the fact the bottom step was missing.

Might the jury properly have found from the condition of the stairs as shown by the photographic exhibit, and the darkness of the basement, that defendant on his visit to the basement before the accident did discover or, in the exercise of reasonable

[370]

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Cite This Page — Counsel Stack

Bluebook (online)
132 N.W.2d 27, 374 Mich. 364, 1965 Mich. LEXIS 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kroll-v-katz-mich-1965.