Strzelczyk v. Marki

BRAY, P. J.

Plaintiffs appeal from a judgment on an order sustaining demurrer to second amended complaint without leave to amend.

Questions Presented

Does section 340, subdivision 3, Code of Civil Procedure (the one-year statute of limitations) apply? This in turn primarily depends upon whether the rule of a continuing nuisance involving damage to land applies to personal injuries.

[704]

Record

The complaint alleges that from June 15, 1951, to July 31, 1955, plaintiffs rented from defendants a four-room furnished apartment under a month to month tenancy. Defendants agreed to assume the obligations of ordinary upkeep, maintenance and care of the premises, and appliances therein, including the plumbing, all of which was warranted to be in good working condition and not injurious to health or life. During the tenancy, defendants operated, maintained, permitted and supervised an open sump-type sewer directly subjacent to the bedroom of the apartment, in a dangerous, defective and unlawful condition. Said sewer was open and received discharges of human waste from a toilet in another apartment. The discharges into the sewer emitted noxious and toxic gases and fumes which plaintiff Marie inhaled “during the said period of time, or for a long time during the said tenancy, in sufficient quantities to cause her to be sick, ill and become injured ...” The exact date of the installation of the sewer is unknown to plaintiffs. In 1953, defendants installed a gas stove and oven in the kitchen of plaintiffs’ apartment. It was so earelessty, negligently and unlawfully maintained, repaired and connected that it caused certain noxious and toxic gases and fumes to escape which were inhaled by plaintiff Marie after its installation to and including the 31st day of July, 1955, causing her to be sick, ill and injured. There follows detail of plaintiff Marie’s illness alleged to have been caused as above. Plaintiffs allege general damages in the sum of $75,000 and special damages of $1834.64. A general demurrer and one stating that the alleged cause of action is barred by section 340, subdivision 3, Code of Civil Procedure, was sustained without leave to amend.

Statutes op Limitation