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WALTERS v. CHAR-MAR (11/11/71)

decided: November 11, 1971.

WALTERS, APPELLANT,
v.
CHAR-MAR, INC.



Appeal from order of Court of Common Pleas of Delaware County, No. 13155 of 1968, in case of Vinton R. Walters v. Char-Mar, Inc.

COUNSEL

Joseph F. Mulcahy, Jr., for appellant.

William D. March, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J. Wright, P. J., Watkins, and Jacobs, JJ., would affirm on the opinion of Judge Catania below.

Author: Cercone

[ 220 Pa. Super. Page 80]

Plaintiff-appellant, Vinton R. Walters, instituted a suit in trespass to recover damages for injuries sustained in a fall on the property in Delaware County which he rented from the defendant-appellee, Char-Mar, Inc. At the conclusion of plaintiff's case on liability, the lower court granted defendant's motion for compulsory non-suit. Plaintiff now appeals to our court.

The fall in question occurred on December 20, 1966 as plaintiff was climbing the stairs which led to the front entrance to his rented home. The stairway consisted of three brick steps and a concrete porch. At the base of the steps was an unfinished concrete platform or slab, which has been described as an "over-pour" of concrete, about six inches wide and with rough and uneven edges. In the front of the home was a combination front yard and parking area for the family car.

The house had undergone major renovations before appellant took possession and signed the lease. Although the lease recited that the lessee was to be responsible for repairs, it was agreed by the parties that the lessor was to finish certain repairs to the premises, including the erection of a handrailing at the front step and the correction and finishing of the rough concrete slab at the base of these steps. During the more than two years that Walters lived in the house before the accident, he frequently reminded the lessor of lessor's promise to perform the above mentioned repairs. Each time this reminder was delivered, agents of lessor acknowledged their promise in this regard, but the work was never done.

[ 220 Pa. Super. Page 81]

Vinton R. Walters had been a victim of muscular dystrophy for years and had difficulty getting up and down stairs. Because of his physical disability, the plaintiff had adopted a particular style for climbing the steps at the front of his home, which was the entrance he always used. He would drive his car up to a position near the steps, so that he could alight on the concrete area at the base of the steps. He would place both hands on the second step and ascend the first step one foot at a time. This procedure was repeated for each step. In effect, he crawled up the steps.

On the day of the accident, at about 5:00 p.m. plaintiff began ascending the steps in his usual manner when he felt a piece of the rough-edged part of the concrete slab break under his left foot, causing him to fall. As a result of the fall, the plaintiff suffered a severe fracture of the femur and has since been confined to a wheelchair.

Plaintiff based his cause of action on the theory of landlord liability contained in the Restatement 2d, Torts, ยง 357,*fn1 which has been adopted in our jurisdiction. See Reitmeyer ...


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