308 A.2d 528 (N.H. 1973)
The defendant owned a residential building in Nashua where she lived in a ground floor apartment while her son and daughter-in-law occupied the second story apartment.1 An outdoor stairway added to the building by the defendant approximately eight years before the accident provided access to the second story apartment.2 The plaintiff's four-year-old daughter fell to her death from this stairway.3
At the time of the accident, the child was under the care of the defendant's daughter-in-law, who served as the plaintiff's regular babysitter.4 Plaintiff brought suit against the daughter-in-law for negligent supervision and against the defendant for negligent construction and maintenance of the stairway.5 Evidence indicated that the stairs were dangerously steep and the railing insufficient to prevent a child from falling over the side, with no other apparent cause for the fall.6
The jury returned a verdict for the daughter-in-law but found in favor of the plaintiff against the defendant landlord.7 The defendant excepted to the denial of her motions for nonsuit, directed verdict, judgment notwithstanding the verdict, and to set aside the verdict.8 All questions of law were reserved and transferred to this court by Dunfey, J.9
Whether the defendant landlord is liable to the plaintiff in tort for the death of plaintiff’s four-year-old daughter who fell to her death from an outdoor stairway at a residential building owned by the defendant?10
Landlords as other persons must exercise reasonable care not to subject others to an unreasonable risk of harm, and the traditional rule of landlord tort immunity is discarded.11
Yes. The evidence showed that the stairway was dangerously steep with an insufficient railing, and the jury could find that the defendant was negligent in its design or construction or in failing to take adequate precautionary measures to reduce the risk of injury to young children who used the stairs while under the care of her daughter-in-law.12 The use of these steps by young children should have been anticipated by the defendant, and there is sufficient evidence on the basis of ordinary negligence principles to support the verdict of the jury which had the benefit of a view.13
The defendant landlord is liable under ordinary negligence principles.14
Whether the facts of the case can be brought within an exception to the general rule of landlord nonliability such as control of the premises or negligent repair?15
The traditional exceptions to landlord nonliability, such as control or negligent repair, are no longer the sole basis for liability as the general rule of immunity is abolished.16
No. The facts do not fit the control exception because the stairway serviced only one apartment and was not common, nor was it a negligent repair but rather original construction by the defendant eight years earlier.17 The court instead discards the general rule of nonliability rather than straining the exceptions to cover the steep stairway and insufficient railing that caused the child's death.18
The facts cannot be brought within an exception to the general rule of landlord nonliability.19
Whether the general rule of landlord nonliability in tort should be discarded in favor of ordinary negligence principles?20
The rule of landlord tort immunity, rooted in agrarian England and based on caveat lessee, is discarded because it is out of accord with modern conditions, and landlords must be subject to the same duty of reasonable care as others.21
Yes. The court reevaluates the rigid rules of landlord-tenant law in light of current needs and principles from related areas of tort law.22 The emphasis on control and other exceptions unduly complicated the jury's task and diverted effort from the central issue of the unreasonableness of the risk presented by the dangerously steep stairway.23 Considerations of human safety dictate that the landowner's relative immunity be modified in favor of negligence principles of landowner liability.24
The general rule of landlord nonliability in tort is discarded in favor of ordinary negligence principles.25