Papakalos v. Shaka

New Hampshire Supreme Court · Contracts

ContractsLandlord and tenantExculpatory agreementsAssumption of riskContributory negligencecommon stairwayretained controllandlord duty

Facts

The plaintiff rented only the rooms in which he lived in a building containing other vacant tenements, and the stairway served his tenement and the other tenements. He moved into the unit after the defendant promised repairs, but the place remained unrepaired; after the plaintiff complained, the parties agreed that rent would be reduced from four dollars to three dollars per month until repairs were made. The defendant admitted the stairs were defective, and the plaintiff knew of their condition from repeated prior use. The plaintiff later fell while trying to descend the stairs in pitch darkness, having no other means of ingress or egress from his apartment.

Issue

Was the landlord barred from liability because he lacked control over the stairway, because the tenant's reduced-rent arrangement excused liability, because the tenant assumed the risk, or because the tenant was contributorily negligent as a matter of law? More broadly, did the plaintiff tenant remain entitled to recover for injuries caused by the defective common stairway?

Rule

A landlord retains a duty to use ordinary care to keep common passageways in reasonably safe condition when those areas remain under the landlord's control for the general use of tenants he may have. A landlord cannot by contract exempt himself from liability for future non-performance of that common-law duty of ordinary care. Assumption of risk does not apply in this type of tenant-landlord tort action, and whether a tenant who knowingly uses a dangerous required means of access acts negligently is ordinarily a question of fact for the jury.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Tanya Reed rented a second-floor apartment in a four-unit building in Portland, Maine. The other three apartments were vacant, but the owner, Harbor Elm Properties, continued advertising them for rent; Tanya was injured when a loose board on the shared front stairway gave way.

Is Harbor Elm Properties most likely subject to a duty of ordinary care regarding the stairway?

Explanation. The majority held that a landlord retains control of a common passageway when the tenant rents only her own unit and the area remains available for the general use of present or future tenants. The fact that Tanya is the only current occupant does not itself transfer control of the stairway to her. The landlord therefore owes a duty to use ordinary care to keep the common passageway in reasonably safe condition for contemplated uses.