Freeman v. Mazzera

DOOLING, J.

This action was one for damages for injuries received by Daniel Freeman, a minor, in a fall from an opening off the landing of the stairway of the apartment house in which he lived with his mother and father. Defendant Schmidt was the builder of the apartment and the other defendants its owners. The court granted a nonsuit as to all defendants and plaintiffs appeal.

The apartment building was constructed by respondent Schmidt in 1950. The building housed four apartments, two on the ground floor and two on the second story. A common entrance and stairway served these apartments. There was a landing on the stairway midway between the two floors and in the outer wall adjacent to this landing there was an opening 32 inches wide and 9 feet 8 inches high. The bottom of this opening was 19 inches above the floor of the landing. The lower part of this opening was protected by an iron lattice frame attached to the outside of the building.

Children had been in the habit of playing in this opening, using its lower edge as a platform on which to stand and sit and one of the managers of the apartment testified that she had seen children playing there from time to time.

On August 4, 1953, the minor plaintiff, who was then 4 years of age, was playing on this ledge when the iron lattice gave way precipitating him to the ground.

The lattice work had been attached to the building at the time of its construction. It was fastened to the building by four 2% inch screws, one at each corner of the iron-work which measured over-all 6 feet 2% inches by 32 inches. There was testimony by several witnesses that the screws holding this lattice had become loose and that the lattice work had been loose for at least a year before the accident. The lattice work had never been inspected and no repairs were ever made upon it. The witness who replaced the iron-work after the accident, with eight years’ experience in installing and repairing similar iron-work, testified that in his opinion this particular

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lattice work, installed as it had been, should have been inspected at least once a year.

Liability of Respondent Owners