Binnicker v. Adden , 204 S.C. 487 ( 1944 )

I respectfully dissent from the opinion of Mr. Justice Stukes, and adopt the order of the Circuit Court, which will be reported after deleting the first sentence therein, and the paragraph at folio 27 of the Transcript of Record; and correctly citing the case of Pendarvis v. Wannamaker, 173 S.C. 299, 175 S.E., 531, appearing immediately above the deleted paragraph.

The Circuit Decree of Judge Gaston, directed to be reported in the Dissenting Opinion of MR. CHIEF JUSTICE BAKER, follows:

Briefly stated, the complaint alleges that the defendants own a certain store room in the City of Orangeburg and that the front of the store room in question is about six feet from the sidewalk of Russell Street, and that the strip of land between the building and the sidewalk is the property of the defendants.

The complaint further alleges that the defendants constructed a cement walkway, about three feet wide, from the sidewalk to the store room, for the public to use to go into the store to trade and purchase goods of the tenant merchant therein; and that the store room, owned by the defendants, was constructed to let and lease for business purposes to merchants who deal with the public.

The complaint then alleges that the plaintiff started into the store room to buy groceries from the merchant, operating a grocery business in one of the stores that was let to him by the defendants for such purpose. She claims that she was injured by a defect and hole in the walkway, constructed by the defendants, which was dangerous and unsafe for the public and the said merchant to use, and became thin and cracked, after it had been used by the public and the merchant for some time, and the hole or broken place in which she stepped as she was using the said walkway was where a portion of the broken walk was taken up. It is also alleged that the defendants knew of the unsafe condition and continued to invite and permit said walkway to be so used, and it is alleged that the defendants were negligent, etc.

By the demurrer, the defendants raise the issue as to the right of the plaintiff to sue them as owners of the leased property. The defendants cite several South Carolina cases in regard to the liability or non-liability of the landlord to the tenant for injury due to a defect in the leased premises. I do not regard the cases cited as directly in point. It is necessary therefore to refer to the law of the land and to the decisions of other courts.

The general rule in regard to the liability of the landlord to third persons for injuries sustained by them is as follows, to wit: (1) Where there is neither privity of estate, nor privity of contract, the landlord is not liable for such damages; (2) Unless by invitation, express or implied, he induces them to come upon the premises. In such cases, the liability of the landlord is not contractual, but based upon some breach of duty. It must be shown that he has done, or failed to do, some act which from his legal relations to the property constituted a breach of duty to the public or to the injured party. It is the tenant's duty to exercise due care to his own customers. The landlord is liable to third persons for a defective condition of premises only when such are due to the (1) faulty or defective construction of the premises, (2) or because of a continuing nuisance thereon, (3) or where the landlord retains control over the premises or a part thereof where the injury occurred, such as a common passageway to this and other property, or an elevator. 24 Cyc., page 1124, under Landlord Tenant.

Consequently, other courts have held that the landlord is not liable in tort for negligence for an injury due to the defective condition of his premises, if the plaintiff fails to show (or allege) that the landlord had the supervision and control over the portion of the premises where the defect was located.Blanchard v. Stones, Inc., 304 Mass. 634,24 N.E.2d 688.

That case also holds that the occupant, and not the landlord, is ordinarily liable for injuries sustained by a pedestrian upon the highway that were caused by a defect in that portion of the premises included within the demise to the tenant where the premises did not contain a nuisance (italics added) at the time they were let or where the contemplated use by the tenant will result in the creation of a nuisance.

To the same general tenor, see the following cases and authorities, to wit: Shepard v. Worcester, etc., 304 Mass. 220,23 N.E.2d 119; Woods v. Lawndale, etc.,302 Ill. App., 570, 24 N.E.2d 193; Vol. 32, Am. Juris., Landlord Tenant, Secs., 662, 817; Vol. 16, R.C.L., Secs. 584 to 587, both inclusive; also Sec. 588, et seq.; L.R.A., 1916-F, page 1124 note and page 1142 note; Timmons v. Williams Wood,etc., 162 S.E., 329, 164 S.C. 361; Pendarvis v. Wannamaker,173 S.C. 299, 175 S.E., 531.

However, the allegations of the complaint fail to allege any facts to bring the case within the rule stated. Clearly, it is plain that the alleged walkway is not used in common by the landlord and his other tenants, or either of them; on the contrary, each store room is alleged to have a separate entranceway for its own use, exclusively for the benefit of the occupant of the store and his customers. It does not add any force to the alleged liability to say that the defendants own the walkway, since the defendants also own the store room as well. 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. Also, there is no claim that the defendants have permitted a nuisance to exist on the property. By way of illustration, the landlord might be liable in a tort suit for damages caused by an open, neglected disused well upon his property, although the property be rented out to another, on the ground of its being a nuisance, in existence when the property was so leased.

I am satisfied that this present tort action cannot be maintained and that the demurrer to the complaint must be, and hereby is, sustained.

Be it so ordered.