Morrison v. McAvoy

California Supreme Court Oct 30, 1902 No. S. F. No. 2520Published

Before: Chipman

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Holding. The court held that the complaint failed to state a cause of action because the sidewalk cellar doors were not a nuisance per se, and the landlord and non-possessory defendants were not liable for the tenant's negligent use of the doors.

Issues

Whether the maintenance of cellar doors in a sidewalk constitutes a nuisance per se under the cited city ordinance.
Whether a landlord or non-possessory defendant is liable for injuries resulting from a tenant's negligent use of sidewalk cellar doors.
Whether the complaint sufficiently alleged facts to establish negligence or a violation of the ordinance.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Such doors, as means of ingress and egress to and from the basement of buildings in towns and cities, are not unusual, and do not constitute a nuisance per se, and are not forbidden by the ordinance pleaded.”

“It is the failure to properly use the doors that introduces the element of danger, and for this improper use the tenant in possession alone is liable.”

Synopsis

Sidewalks—Openings—Liability of Tenant.—A city ordinance provided that no person should obstruct any sidewalk so as to interfere with its convenient use, and that every one should keep around every flight of stairs descending from the sidewalk to the basement a fence or railing at least two feet high. Held, that where the owner of a building had made an opening in the sidewalk, with stairs running to the cellar, the opening being provided with iron doors that constituted part of the sidewalk when closed, a use by the tenant of the opening and doors so as to violate the ordinance rendered only the tenant liable, and not the landlord.

Sidewalks.—An Opening in a Sidewalk With Stairs leading to the cellar, the doors forming part of the sidewalk when closed, and the sides of the doors affording a protection when open, was not a violation of the ordinance.

CHIPMAN, C. A demurrer was sustained to plaintiff’s third amended complaint and, plaintiff declining to further amend, judgment passed for defendants, from which plaintiff appeals. The demurrer was by two of the defendants, but seems to have been treated by counsel and the court as filed in behalf of all the defendants, and we will so treat it.

The complaint alleges that defendant Eletta Brown was the owner and the other defendants were tenants of the premises, situated in the city of Oakland, where the alleged injury occurred; that an ordinance of said city provided that “no person shall .... so occupy or obstruct any sidewalks as to interfere with the convenient use of the same by all passengers”; also that “every person shall keep around [38]every .... flight of stairs descending from the sidewalk to the basement owned or occupied by him, a fence or railing at least three feet high.” It is alleged that in 1892 said Brown leased the premises to one M. Beaudry, now deceased, and defendant G-. Peladeau, for a term of six years; that at the time said Brown so leased said lot she “maintained without any license, .... underneath the sidewalk which is in front of said premises, .... an unauthorized and unprotected excavation, and also an unauthorized and unprotected opening thereto, with doors to said opening about sixteen inches in height when opened, and which are fitted to and usually cover said opening and form part of said sidewalk, .... and which opening .... has an unauthorized flight of stairs .... leading into said cellar underneath said premises, and which said doors, .... when opened, and which Laid excavation and opening thereto and said flight of stairs, each and all constituted an impediment . ... in, under, upon, and over said sidewalk,” contrary to said ordinance; that “said cellar, doors, and opening and flight of stairs were used for ordinary business purposes”; that said “Brown never furnished any other means of access to said cellar, and never provided any guard, .... or protection whatsoever against accidents, or any fence or railing .... about said” opening, and said “opening, doors, and flight of stairs each and all constituted and caused at all times herein mentioned an unauthorized trap, obstruction, and nuisance upon, in, and under said sidewalk,” that when the said Brown so leased said premises she well knew the .condition of the said opening, etc., as above described, and she received rent for said premises at all said times in their then condition; that defendant Hugh B. McAvoy was appointed administrator of the estate of said Beaudry, deceased, in 1895; that said defendants, Hugh McAvoy, as administrator, and said Peladeau, wrongfully sublet a portion of the first floor of said premises and the said cellar with its said approaches, for the month of October, 1897, to their oodefendant, J. C. McAvoy; that when said administrator and said Peladeau so rented said premises for the month of October, 1897, they knew the said condition of said cellar, door and stairway, and knew that they constituted a nuisance, but did not furnish any fence, railing or guard, or protection around said opening and stairs, or any

Morrison v. McAvoy

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