McKey v. Fairbairn

Levi McKey leased a house from Kenneth Fairbairn (defendant), who was an agent for the property’s owner, Euphemia Haynes (defendant). The lease stated that it was Levi’s responsibility to surrender the house in the same condition in which he received it. Levi’s mother-in-law, Agnes Littlejohn (plaintiff), lived in the house with Levi and his family. After a snowstorm, Levi notified Fairbairn of moisture on Littlejohn’s bedroom wall. The person sent by Fairbairn to investigate observed the wall moisture and agreed to fix it but found no sign of a roof leak. A week later, before any repairs, a night of rainfall caused a roof leak over Littlejohn’s bedroom. When Littlejohn awoke and discovered the wet floor, she mopped it twice. However, when she later returned to wake her grandson and get her coat, she slipped on the wet floor and sustained serious injuries. Littlejohn sued Fairbairn and Haynes for negligence, alleging that her injury resulted from a dangerous condition that Fairbairn and Haynes either knew or should have known about but failed to repair. Littlejohn died of other causes, and the administratrix of her estate, Helen McKey (plaintiff), proceeded with the suit. During the pretrial proceedings, the judge asked Helen’s attorney whether the negligence claim was based on a failure to repair in breach of a duty owed under the lease. The attorney answered yes. During the trial, the attorney moved to amend the pretrial order to allow him to introduce a new negligence theory based on certain local housing regulations, including one requiring landlords to provide leak-free roofs and drainage that prevented wet walls and ceilings. The judge denied the motion. The judge then concluded that the original negligence theory failed because Fairbairn and Haynes did not have actual or constructive notice of the roof leak prior to the leak’s occurrence and also there was no duty to repair under the lease. The judge therefore directed a verdict for Fairbairn and Haynes. Helen appealed.