Welch v. Derian

FILES, J. Plaintiff, a 4-year-old child, sues for injuries sustained when she fell to the bottom of a stairwell behind the apartment house in which she lived. A trial without a jury resulted in a judgment for plaintiff. Defendant’s appeal challenges the sufficiency of the evidence.

Defendant’s premises consisted of an apartment building, behind which was a paved service area. Stairs from the service yard led down to a basement door. This stairwell [752]was protected on two sides by a concrete wall rising about 24 to 30 inches above the level of the yard. There was a pipe railing 20 to 24 inches above the wall. The space between the wall and the railing was open except for the supports at the end and corner of the railing. The premises did not include any playground as such, but the children of the tenants sometimes played in this paved area.

At the time of the accident plaintiff’s mother was hanging out clothes. She heard the child scream, and discovered her lying at the bottom of the stairwell. She was on her stomach, with her head against the bottom step. Plaintiff’s chin was cut and bleeding. X-rays subsequently disclosed a right subcondylar fracture of the mandible.

Although defendant had owned the property less than two months, it is inferable that he knew its physical characteristics, knew children lived on the premises, and could anticipate that they were likely to do what children usually do while playing outside. It is not disputed that the yard and stairwell were a part of the premises available for the common use of all tenants, so that the condition of that area was the landlord’s responsibility. (Harris v. Joffe, 28 Cal.2d 418, 423 [170 P.2d 454].)

Plaintiff’s theory of the cause of the accident is set forth in the complaint as follows:

“That on or about the 30th day of March, 1960, plaintiff was playing in the yard of said premises, and swinging off the top cross bar of said railing; that she slipped and fell into the stairway landing on the concrete steps.

“That defendants were negligent in maintaining an unsafe guard railing over an outside concrete staircase and defendants knew or had reason to know as a reasonably prudent persons that the staircase was located in a place frequented by children of tender years and that said children played by swinging on said railing over the staircase.