Before WATERMAN, MOORE and SMITH, Circuit Judges.
Plaintiffs, husband and wife, brought suit against the government under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) et seq., for personal injuries suffered by the wife. The case was tried before Judge Murphy, sitting without a jury, in the United States District Court for the Southern District of New York. In a memorandum opinion Judge Murphy granted judgment for the plaintiffs and awarded them $28,804.02. The government appeals, claiming that it was not liable for negligence and that the award was too large. We affirm the court below on both points.
The district court made the following findings of fact: The government owned a housing development in Hyde Park, New York, in which the plaintiffs were tenants. In the early evening of January 7, 1961, the wife slipped on a patch of ice that had formed on a concrete walk within the development, "and landed on her rump, causing her severe injuries." January 7, 1961, was a sunny day, with the temperature near the 50's. Throughout the day snow from a previous storm was melting which caused the walk to become sloppy. Toward evening the temperature fell to below 32 degrees, and ice formed on the concrete section of the walk upon which the wife subsequently fell. This particular slab was depressed two or three inches below the normal surface of the walk. Nothing had been spread on the slab to provide better traction, nor was the area in which the accident occurred adequately illuminated.
The government does not challenge any of these findings of fact. Instead, it argues that under the applicable law a landlord owes no duty to tenants to protect them, while traversing his walkways, from danger arising from natural accumulations of smooth ice, from icy conditions of which he has no notice, or from a failure to illuminate transient patches of ice. Of course the applicable law is the law of New York, the state in which the government's alleged acts of negligence took place. Richards v. United States, 369 U.S. 1, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1962).
Under New York law, a landlord has a duty to his tenants to use reasonable care in keeping common passageways safe for their use. This duty, however, does not extend to "the natural accumulation of ice unless unusually ridgy and bumpy * * *." Valentine v. State, 197 Misc. 972, 95 N.Y.S.2d 827, 830 (Ct.Cl.1950), aff'd, 277 App.Div. 1069, 100 N.Y.S.2d 567 (1950), citing Dwyer v. Woollard, 205 App.Div. 546, 199 N.Y.S. 840 (1923), and Harkin v. Crumbie, 20 Misc. 568, 46 N.Y.S. 453 (Sup.Ct. 1897). The wife admitted that the ice on which she fell was "smooth like glass."
On the other hand, under New York law, if the landlord is guilty of affirmative negligence in causing the accumulation of ice, he can then be held liable even though the ice is smooth. For example, see Jankowsky v. Brown, 177 App.Div. 602, 164 N.Y.S. 303 (1917), in which the landlord washed slush off his front steps with hot water which then froze into a thin icy glaze. This rule is related to the general principle that:
"A lessor of land who, by purporting to make repairs thereon while the land is in the possession of his lessee or by the negligent manner in which he has made such repairs has * * * made the land more dangerous for use, is subject to liability for bodily harm caused thereby to the lessee * * *" Restatement, Torts § 362 (1934).
In the present case, however, the district court did not find that the government had caused the ice to form by the way in which it cleaned the walk of snow or caused it to form by any other positive acts of negligence, but only found that the government had failed to keep the concrete sections of the walk level.
Nevertheless, plaintiffs maintain that their suit comes within the rule of New York law stated above. They rely upon Epner v. Rhulen, 8 A.D.2d 646, 184 N.Y.S.2d 910 (1959), another decision holding the property owner guilty of "affirmative negligence." In that case, defendants had piled snow in such a way that melting water drained into a saucerlike depression in their sidewalk while the unmelted snow served as a dike to hold the water in place. As we read that opinion, however, defendants' negligence arose from the careless way in which they had piled the snow, not their failure to repair the depression in the sidewalk. We take the same view of Zahn v. City of New York, 299 N.Y. 581, 86 N.E.2d 105 (1949), another case cited by the plaintiffs. Any other interpretation would perplex further the already perplexed distinction between misfeasance and non-feasance.
A New York landlord may also be held liable for accumulations of ice, even though smooth, if they are promoted by a dangerous condition which the landlord allows to persist. For example, see Clapper v. Zubres, 261 App.Div. 850, 24 N.Y.S.2d 377 (1941), aff'd, 285 N.Y. 770, 34 N.E.2d 914 (1941), in which melted snow was permitted to drip from a porch roof onto the front steps of the house. This rule is likewise in accord with a general principle of tort law, that:
"A possessor of land, who leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee * * * for bodily harm caused to [him] by a dangerous condition upon that part of the land retained in the lessor's control * * *." Restatement, Torts § 360 (1934).
This is the basis of the government's liability for failing to keep the concrete sections of the walk level.
The government relies on Gibson v. Prudential Ins. Co., 258 App.Div. 740, 15 N.Y.S.2d 100 (1939), appeal dismissed, 283 N.Y. 647, 28 N.E.2d 43 (1940), in which the court held that a depression in a sidewalk about one foot square and from one-half to one inch deep, in which water had accumulated and frozen, did not constitute a "dangerous condition." To the same effect, see Lynch v. O'Rourke Realty Corp., 2 A.D.2d 851, 155 N.Y.S.2d 847 (1956), aff'd, 3 N.Y.2d 957, 146 N.E.2d 788, 169 N.Y.S.2d 30 (1957), another decision of the same court cited by the government. We fail to apprehend, however, ...