# Kroll v. Katz > Michigan Supreme Court · January 5, 1965 · 374 Mich. 364 URL: https://www.frixlaw.com/law-library/cases/9672236 ## Case - **Full name:** Kroll v. Katz - **Court:** Michigan Supreme Court - **Decided:** January 5, 1965 - **Citations:** 374 Mich. 364; 132 N.W.2d 27; 1965 Mich. LEXIS 334 - **Precedential status:** Published - **Opinion:** Dissent by Kelly - **Judges:** Black, Souris, Smith, O'Hara, Adams, Kavanagh, Dethmers, Kelly - **Cited by:** 93 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9672236 ## How later opinions describe it (automated extraction) - holding that the basement stairway’s missing bottom stair was of such character that the premises possessor “in the exercise of reasonable care, . . . should have discovered that the situation was dangerous, and, in the exercise of reasonable care, should have either remedied … - stating that there is no liability for a dangerous condition about which a premises possessor did not know “and could not have discovered with reasonable care” - concluding that the mere existence of a defect or danger is not enough to establish liability - explaining the holding in Yarington ## Opinion text Kelly, J. (dissenting). The trial judge entered judgment for defendant notwithstanding the verdict of the jury because the proofs were “completely lacking * * * that the defendant knew, or should have known, of the conditions, to-wit: the step which broke and the missing step, that caused the plaintiff’s fall and his resulting injuries.” It is well established that such proof was necessary for plaintiff to have a right to recover from defendant. In Nash v. Lewis, 352 Mich 488, 492 , we stated: “ ‘A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them.’ ” *375 In Goldsmith v. Cody, 351 Mich 380, 389 , we said: “ ‘Suffice it to say that the plaintiff says he never saw them (barricades) down, but no proof is present in this record to show that the defendants or any of them were given warning of a situation where it was necessary for them to take action in order to protect themselves from the charge of negligence. “ ‘The burden of proof is upon the plaintiff in that respect, and the record is void of testimony.’ ” Appellant’s appendix in this appeal lists only three witnesses: one for plaintiff, namely, the plaintiff, Walter F. Kroll, and two for defendant, namely, the defendant and his brother-in-law, Mr. Mitnick. Plaintiff presented no testimony to prove that defendant knew, or ought to have known, the steps were dangerously defective, but did testify that two days before his accident he helped his employer (Mr. Sarnoff) carry a 200-pound laundry tub down these steps and that he stopped on the third step from the bottom as Sarnoff reached the basement floor with his end of the tub; that Sarnoff made no comment about anything being wrong with the steps. Defendant testified that he had sold his property on contract and that, “In June or July, I passed by and I don’t know what date I passed by the property. It was vacant. The door was opened and the back door was opened and I figured to come in to see what happened. I come in and there is no plumbing. Everything was destroyed. * * * It (the plumbing) was gone. * * * The electrical fixtures were gone”; that he called the plumbing contractor, Mr. Sarnoff, and made arrangements with him to replace “everything according to the law for the building department”; that when Sarnoff had completed his job and he paid him off, Sarnoff did not inform him that plaintiff had been hurt on his cellar steps and, in fact, he did not know that plaintiff had any *376 claim against him until plaintiff started his suit one year later. Plaintiff’s counsel’s cross-examination of defendant discloses that the questions were only directed toward the activity of the plasterers, the painters that defendant engaged to help recondition the house, and the locks that defendant placed on the doors, but not one question was directed on cross-examination to defendant in regard to the cellar steps. Defendant’s brother-in-law testified that he was with defendant when he discovered the doors open, the plumbing and electrical equipment stolen, et cetera; that he went down into the basement and that he did.not see anything wrong with the steps. Once more counsel for plaintiff on cross-examination did not ask one question in regard to the cellar steps. In setting aside the verdict and entering judgment non obstante veredicto for defendant, the trial court set forth in a thorough and lengthy opinion the reasons why plaintiff had failed to prove defendant’s negligence. In regard to plaintiff’s claim that defendant was negligent in not providing lights in the basement, and particularly over the steps, the court called attention to the fact that plaintiff knew as he started down the steps there were no lights in the basement; that he had a flashlight and his testimony was that he flashed the light upon the steps but did not continue to do so because he had been down the steps just two days before with his employer and from that trip he thought the steps were all right, and, so, as he descended, he flashed his light around the basement to find out where the water meter was located; that plaintiff was fully aware of the fact that the electric service was turned off and, concluding on this question, the court stated: *377 “In considering any negligence chargeable to the defendant by reason of the darkened condition of the stairway and basement we must, in all fairness, consider the circumstances then and there existing, and particularly the fact that the defendant was engaged in repairing the premises and making them habitable and had, in fact, employed the employer of the plaintiff to assist him in this purpose. If there was any causal connection between the lack of light in the stairway and the injuries sustained by plaintiff it arose through the negligence of the plaintiff in not using the means which he had at hand, to-wit: his flashlight, in observing the condition of the stairway, rather than any negligence on the part of the defendant.” "VVe agree with the trial court’s conclusion that the absence of electric lights in the basement did not prove defendant’s negligence, and disagree with appellant’s contention in his brief submitted to this Court that: “There is no evidence in the record that the defendant had any intention of providing proper lighting in the basement. There is no explanation in the record why the delay. It may have been excusable or negligent. In the absence of an explanation by the defendant the jury may well have concluded he was negligent.” Considering the claim of plaintiff that defendant was negligent for not having a handrail along side the steps, we call attention to the fact that plaintiff’s accident is not based upon, nor was any proof offered of, any violation of a statutory or municipal law. No proof was offered or suggested that the steps were improperly constructed contrary to the building code. Plaintiff’s claim is based upon alleged common-law negligence. There is nothing in plaintiff’s testimony to the effect that the handrail, if one were present, would have prevented him from falling. In fact, he testi *378 fied that as the step cracked under him he threw his body toward the wall and grabbed onto the 2x4 that is clearly shown in the photograph attached to my Brother’s opinion. The trial court stated: “As to the handrail, there is nothing in the evidence showing that a handrail was necessary, or that the failure of the defendant to have had a handrail installed presented a dangerous situation. The stairs at this point were straight and descended from a landing directly into the basement. This was a dwelling house, not a public building. It is generally known that cellar stairways in private homes frequently are not equipped with handrails.” Appellant, in his brief, states that while no testimony was offered to prove that defendant was negligent in not constructing' a handrail, that the photograph is sufficient and speaks for itself, and the jury was justified in finding that, while this was an old building, the fact that others “get away with it never has been an excuse or satisfaction for this obvious negligence,” and that any claim that “defendant did not have time or opportunity to change it is a burden of proof that was not carried by the defendant.” In regard to the step that craeked from plaintiff’s weight and precipitated his fall, the court found that “there was no evidence produced from which it could be concluded that the defendant knew, or should have known, 'that the step might break, that it was cracked or out of repair. * * * There is nothing in the record to support a conclusion that the defendant knew, or should have known, that the step might break.” My Brother in his opinion states: “The jury properly could have found, on the evidence adduced and the instructions given, that defendant on his visit *379 to the basement before the accident did discover or, in the exercise of reasonable care, should have discovered that the situation was dangerous, and, in the exercise of reasonable care, should have either remedied the danger or warned plaintiff of its existence,” and “defendant admittedly descended the subject stairs shortly before the accident to inspect the basement and looked closely enough to find plumbing and electrical fixtures missing and discovered that the basement was dark.” The record discloses that approximately 30 days before the accident defendant made a trip down into the basement, after finding the doors of his house open and the plumbing and electrical fixtures stripped, and he found nothing wrong with the steps. Plaintiff did not challenge this statement during his cross-examination of defendant. According to the proofs, both plaintiff and defendant made one trip down the cellar steps prior to the accident: Plaintiff two days before the accident and defendant at least 30 days before the accident, and both found the steps all right. In other words, to conclude as plaintiff-appellant would ask this Court to conclude, contrary to the trial court’s conclusion, it would mean that even though defendant took a trip down the stairs before the plaintiff and his employer went down the stairs that, while plaintiff and his employer did not observe anything wrong with the stairs, defendant was guilty on his trip some 30 days previous to the accident for not having so observed. Concerning the missing bottom step, there is nothing in the record to show when this step was removed, and from the testimony introduced, there can be only one inference, i.e., that it was removed subsequent to defendant’s last trip down the stairs and subsequent *380 to the trip that plaintiff and his employer took down the stairs two days before the accident. The record sustains appellee that: “There is no testimony in the record as to any defect in the step, just that it broke when plaintiff stepped on it. There is no testimony that it was cracked or that there were nails missing. There is no testimony that the step had been loose prior to plaintiff falling. There is no testimony that if the steps had been examined, it would have shown any defect requiring repairs. There is no testimony that failure to have a handrail in any way precipitated plaintiff’s injuries. There is no testimony that the lack of lights caused plaintiff to fall. There is no testimony when the last step was removed or how long it had been gone. There is no testimony that any dangerous condition existed when plaintiff stepped on the stairs, and even if it could be said that there was a dangerous condition, there was no showing that the condition was brought to the attention of the defendant or existed a sufficient length of time and under circumstances so that such condition could have been discovered and known to the defendant.” The court did not err in setting aside the verdict. The judgment should be affirmed, with costs to ap-pellee. Dethmers, J., concurred with Kelly, J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9672236. Public record. Not legal advice.