C. W. Berl, Jr., and Richard L. McMahon, Berl, Potter & Anderson, Wilmington, for plaintiff.
F. Alton Tybout, Prickett, Prickett & Tybout, Wilmington, for defendants, Ralph W. Stewart and Elizabeth N. Stewart.
In this action plaintiff seeks to recover for personal injuries she suffered when she fell on outside steps leading to an apartment occupied by Joseph J. Brzoski and Regina G. Brzoski, located on the first floor of a building owned by Ralph W. and Elizabeth N. Stewart.
The plaintiff has brought suit against both the tenants and the landlords. The Stewarts filed a motion for summary judgment on the ground that a landlord is not responsible for injuries caused by the condition of the leased premises [53 Del. 332] and that the plaintiff, Mrs. Grochowski, was herself negligent, as a matter of law.
On August 28, 1958, between 9:30 and 11:00 p. m., Mrs. Grochowski tripped and fell down the flight of outside concrete steps which served as a means of access to the first floor apartment, occupied by her daughter, Mrs. Brzoski, and her husband. She was on her way home after having served as a paid babysitter for her daughter.
The building in which the apartment was situated was a two story dwelling owned by the Stewarts. At the time of the accident, the Stewarts lived on the second floor. There were no other families or apartment facilities in the building. The Stewarts' apartment and the Brzoskis' apartment had separate entrances connected by separate outside stairways.
The usual means of ingress and egress from the Brzoskis' apartment was by way of a cement porch, open on both ends from the street end of which the steps in question led to a paved sidewalk. The steps at the other end of the porch were not used because of their inconvenient location, the muddy condition of the lawn surrounding them and the absence of any paved sidewalk leading to them. There was no handrail adjacent to the steps, although there was a concrete abutting wall on the right side of the steps perpendicular to and flush with the top of the porch.
At the time of the accident, it was a dark, clear night. The porch light was on and gave sufficient light for one to see the steps.
Mrs. Grochowski said she caught the heel of her right shoe at or near the edge of the top step, flush with the porch itself, just as she was about to step down. Photographs indicate the edge of the top step was weatherworn and rounded but there was no rough, broken or cracked portion of the riser of that step. The remaining lower steps were in various degress of disrepair, being rough and uneven, and in spots [53 Del. 333] pieces of concrete were missing and cracks in the risers of various sizes had appeared.
Mrs. Grochowski said she had become quite familiar with the steps during the ten months she had been babysitting for her daughter. She had never complained to anyone about their condition nor had she even used the other side of the porch.
The Brzoskis stated that they had used only the steps in question as a means of ingress and egress, and that Mr. Brzoski had kept the steps clean and free from snow in the winter. The tenants replaced the front porch lightbulb when necessary but never made any repairs whatever to the front steps either before or after the accident. In reply to the question, 'Did the Stewarts ever use these steps on your porch for any reason?', Mr. Brzoski said, 'No, just the boys running up and down.' The Brzoskis also were accustomed to sitting on the front porch on their own furniture.
After the accident Ralph Stewart roped off the steps, thereby requiring all persons to use the far side of the porch. The record reveals no other evidence of use, care or maintenance of the steps by the landlords.
Plaintiff argues that the Stewarts are liable because they were negligent in constructing and/or maintaining and/or failing to make repairs to the steps. Plaintiff cannot recover from the landlords unless ...