177 A. 262 | Conn. | 1935
The substitute complaint in this case contains the following allegations: The plaintiff and defendant agreed to enter into a written lease of certain premises owned by the latter at a certain annual rental, provided the defendant made certain repairs inside and outside of the building which were necessary to make the premises tenantable and which were to be completed before occupancy began. Among the repairs to be made was the replacing of the floor of the front porch. In reliance upon the defendant's agreement to repair, the parties on May 15th, 1931, executed a written lease of the premises. On or about June 1st, 1931, and thereafter the plaintiff complained to the defendant's agent of their failure to repair the porch and on these occasions the defendant or her *402 agent acknowledged the agreement and promised to carry out her undertaking, blaming her employees for the failure to do so. On August 20th, 1931, the repairs still not having been made, one of the boards in the floor of the porch broke, the plaintiff's leg and foot went through the opening and, as a "proximate result of the negligence of the defendant in failing to repair said defective front porch" after notice of the defect, she suffered certain injuries, stated in detail. At the time of the injuries the plaintiff was conducting a rooming house and a retail stand, and by reason of her injuries she was deprived of large sums of money due to her inability to carry out these enterprises. She was in the exercise of due care. By an amendment to the complaint the written lease was annexed to it as an exhibit. The only provision in this lease touching upon the repair of the building was as follows: "The said lessee covenants with the said lessor to hire said premises, and to pay the rent therefor as aforesaid, to commit no waste, to repair all broken window glass, and to peaceably quit and surrender the premises at the end of the term or sooner termination of this lease, in as good condition as the same are or shall be put in by the lessor during said term, reasonable wear and use thereof, and damages by the elements excepted."
The defendant made a motion to expunge so much of the substitute complaint as stated that the injuries suffered by the plaintiff were the result of the defendant's negligence in failing to repair the porch and as described the injuries and losses she had suffered; and she also demurred to the whole complaint. The trial court denied the motion and overruled the demurrer. Subsequently the plaintiff filed an amendment to the complaint specifically alleging that the defendant negligently permitted the defective condition of the *403 porch to continue and the defendant filed a motion to expunge this allegation, which the trial court also denied. These pleadings raised certain issues which were also presented in one way or another at the trial and are largely decisive of the appeal. One of the defendant's claims is that, under the allegations of the complaint, there could be no recovery for negligence, that the sole cause of action presented by the facts alleged was in contract, and the plaintiff could not upon such facts recover for any personal injuries or loss of business occasioned by the breaking of the floor.
In Stevens v. Yale,
It is true that it is generally held that in an action for the breach of such an agreement as the one involved in this case damages to the tenant for resulting personal injuries are, as regards an action based upon the breach of that contract, not within the contemplation of the parties when it was made and so not recoverable, and that an action in tort cannot be based upon an obligation of the landlord to repair based upon an agreement on his part to do so. Notes, 8 A. L. R. 765, 68 A. L. R. 1194. The latter proposition is disapproved in the American Law Institute Restatement, Torts (Negligence) § 357. The result of the decisions referred to in the notes cited is, as was pointed out in the Stevens case, that where a person rents premises which are out of repair in reliance upon an agreement of the landlord to repair them, *405 and suffers personal injuries due to a failure of the landlord to keep the agreement, he is remediless. To apply this rule in a case where the want of repair is such as to make likely a personal injury to the plaintiff would be often to deny him the very protection from injury for which he has bargained and which has come about from the defendant's breach of an obligation which he must have reasonably known to have been intended to prevent that injury. We have no need to consider in this case the question whether in such a case the tenant might recover the damages he has suffered in an action upon the contract, for if the plaintiff here was entitled to recover upon the basis of negligence, the damages she sought, certainly upon the face of the complaint, could not be said to be beyond the permissible recovery in an action of that nature.
The question as to when and to what extent a recovery for negligence may be based upon the breach of a contract obligation is one of the moot questions in the law. The instance afforded by the breach by a lessor of a covenant to repair is but one phase of it and cannot be considered otherwise than as a part of the larger problem. It would, perhaps, serve no purpose to go into the historical relationship between contract and tort; see Salmond, Torts, p. 12; rather we adopt Professor Bohlen's statement in his Studies in the Law of Torts, p. 87: "Modern tendency is to make the fundamental nature of the obligation the test as to whether the action is founded upon either tort or contract." As Bohlen points out, Op. Cit., p. 86, in many instances where parties through contract have entered into a definite relationship to each other, as in the instance of a physician and his patient, a lawyer and his client, or a bailor and bailee, the law imposes certain duties arising out of the relationship *406
itself as to the use of care; these it regards as impliedly entering into the contract itself; but they are in fact more fundamental than the obligation of the contract. See Pollock, Torts, p. 554. This appears very clearly with reference to the situation of the physician and his patient, because the duty to use reasonable care and skill arises where a physician undertakes to treat a patient, even in the absence of any contract. Winfield, Torts, p. 69; 21 Rawle C. L. pp. 379, 400. In such situations an action based upon the failure to use the required care and skill lies in tort and, if there is a contract, may also lie in contract.Hickey v. Slattery,
But the question as to the extent to which a liability in negligence may arise out of a contractual relationship is not confined to such situations as we have mentioned. For instance, suppose a company contracts to build a bridge as a part of a highway and by its negligent performance of its contract, the bridge falls and a traveler is injured; here any liability of the company has its origin in the assumption of a contract obligation, to which the traveler is in no sense a party; but is the traveler for that reason to be denied a remedy? See O'Brien v. American Bridge *407 Co.,
Negligence occurs where one under a duty to exercise *408
a certain degree of care to avoid injury to others fails to do so. Bill v. Smith,
In the final analysis this is the real basis upon which the law imposes upon a physician, a bailee, an attorney, and other persons standing in such relationship, an obligation to exercise a certain, degree of care *409
or skill. It is because he is entrusted with the person or property of another or has assumed the performance of an act which may affect the rights of another under such circumstances that, unless he uses proper care, that other will suffer injury, that the law imposes or implies a duty to use such care. In other words, the particular facts which bring two persons into a relationship to each other are not necessarily controlling, but the true test is, speaking generally, being in that relationship, are the circumstances such that one, in the performance of some act within the scope of that relationship, unless he uses proper care, is likely to do injury to the person, property or rights of the other. "If a man will set about actions attended with risk to others, the law casts on him the duty of care and competence. It is equally immaterial that the defendant may have bound himself to do the act, or to do it competently. The undertaking, if undertaking there was in that sense, is but the occasion and inducement of the wrong." Pollock, Torts, p. 554. It is in this sense that negligence grows out of contracts as nuisance may grow out of negligence. See Hoffman v. Bristol,
Of course a mere breach of the contract would not afford a basis for a recovery in tort, but the necessary elements to establish negligence must be shown; nor could such a cause of action be based upon an agreement not supported by a consideration. Newman v.Golden,
This conclusion disposes of the claims of law based upon the denial of the motions to expunge and the *411
overruling of the demurrer, except the ground stated in the latter, that the agreement to repair became merged in the written lease between the parties, and hence no contractual liability rested upon the defendant. The written lease contained no express covenant on the part of the plaintiff to repair the premises except as to window glass, and indeed is strongly suggestive of an obligation to repair resting upon the defendant because the plaintiff covenanted to surrender the premises when the lease terminated, not in as good condition as when she took possession, but "in as good condition as the same are or shall be put in by the lessor during said term." Whether the plaintiff might prove the oral agreement to replace the floor of the porch, would depend upon the question whether the parties intended that the written lease subsequently made should embody the entire agreement.Cohn v. Dunn,
The court charged the jury very clearly that the plaintiff could recover only upon proof of an agreement to make repairs as alleged in the complaint and the further instructions were based upon the assumption that the jury had found this to be so. No complaint is made of the trial court's charge as to the elements necessary to constitute a cause of action in negligence, which closely followed the opinion in theStevens case. The defendant pleaded that the plaintiff had assumed the risk of injury from the defect in *412
the porch, and assigns error in the failure of the trial court to give certain instructions she requested, and in a certain portion of the charge as given, which dealt with this defense. If there were such an agreement to repair as was alleged, the ordinary rules as to the assumption by a tenant of obvious defects in the leased premises would not apply. In Freedman v. Hurwitz,
The request to charge that upon the allegations of the complaint the plaintiff must be held to have assumed the risk of injury could not properly be given because all that appears in it is that she knew of the general defective condition of the porch, and nothing is alleged as to her knowledge of the particular defect causing the accident, nor as to her comprehension of the risk of injury from it. Risks are not assumed by a plaintiff unless he has, or ought to have, knowledge and comprehension of the peril to which he is exposed, and, having such knowledge and comprehension, he continues of his own volition to subject himself to that *413
peril. Tenney v. Baird Machine Co.,
When we turn to the portion of the charge relating to this matter, which is assigned as error, we find that it was limited to the statement that the fact that the lessee had a more intimate knowledge of the conditions of the property than the lessor, would not impose a full assumption of risk upon her, and an instruction as follows: "There is a well-defined line of distinction between the assumption of risk and that of contributory negligence. Both may exist in a given case, or one may exist without the presence of the other. Assumption of risk on the part of a plaintiff exists where none of the fault for the injury rests with the plaintiff, but where the plaintiff assumes the consequences of injury occurring without his fault, injury occurring through the fault of the defendant, fault of a third person, or fault of no one. Contributory negligence consists of where some act of the plaintiff was the proximate cause of the injury. The rule is: `Volenti non fit injuria.' In its widest significance it assumes one who has invited an act done to him then cannot when he suffers from it complain of a wrong." Only the two last sentences give the jury any guidance as to the conditions under which assumption of risk would exist and they went no farther than a charge that if one "has invited an act done to him" he cannot complain. Such an instruction was inadequate to afford a basis for determining whether or not the doctrine applied in this case. This charge failed adequately to explain to the jury the essentials necessary to establish an assumption of the risk by the plaintiff.
As this necessitates a conclusion that there was error, we consider only such other claims of error as are likely to be involved in a new trial. The fact that the plaintiff *415
used the porch knowing it to be defective, would not charge her with contributory negligence as matter of law; whether she was thus negligent would depend upon the extent of her knowledge, actual or constructive, of the conditions of the porch causing the injury and the likelihood that the portion of the porch floor which broke would give way; Gipstein v. Kirshenbaum,
There is error; the judgment is set aside and a new trial ordered.
In this opinion the other judges concurred.