174 F.2d 880 | 2d Cir. | 1949
This is a negligence action to recover for personal injuries sustained by the plaintiff through the fall of an electric lighting fixture while he was a business visitor in the store of Olian & Cantor. They were in possession of the store under a lease from Ems Corp., owner of the building in part of which the store was located. The lighting fixture was attached to a ceiling beam. When Mr. Olian pulled the switch cord to turn on the light, the entire fixture fell and part of it, together with pieces of plaster from the ceiling, struck the plaintiff, causing the injuries complained of. His action was brought against both the tenants and the landlord. At the conclusion of the evidence the landlord moved for dismissal of the complaint on the ground that the evidence was insufficient to establish any liability on its part. The motion was denied and the jury returned a verdict exonerating the tenants and awarding the plaintiff damages of $102,500 against the landlord. The landlord then moved to set aside the verdict and dismiss the complaint or to grant a new trial. This motion the trial judge denied in an opinion reported as Bernstein v. Olian, D.C., 77 F.Supp. 672. From the judgment entered on the verdict Ems Corp. has appealed.
There is no dispute as to the facts. The appellant acquired ownership of the building in November 1942. At that time Olian & Cantor were in possession of the store under a lease made in 1938 with the former owner of the building. In 1943 they executed a lease with the appellant which was in effect when the accident occurred on July 2, 1945. The fixture which fell consisted of a metal base-plate attached to the concrete ceiling beam by screws, an ornamental canopy concealing the base-plate,
A person in possession of real estate is liable for injuries caused to a business visitor by a dangerous condition existing in the premises if he knows of the danger or by the exercise of reasonable care could discover it, and fails, to warn the business visitor. A.L.I. Restatement of Torts, § 343. When the premises are occupied by a tenant under a lease, the duty of discovering the danger and warning the business visitor generally falls upon the tenant, and a similar duty is not imposed upon the landlord who is ignorant of the danger merely because the lease requires him to make repairs. Cullings v. Goetz, 256 N.Y. 287, 290, 176 N.E. 397. That decision, however, 256 N.Y. at page 294, 176 N.E. at page 399, expressly excluded from its ruling the case “where a part only of the building is in possession of the lessee, and the dangerous condition is in the ways or other parts retained by the lessor.” The trial judge relied upon this exception in distinguishing the Cullings case.
Assuming arguendo that the landlord did retain control over the site of the dangerous condition, nowhere in the record is there any basis for finding that it received any notice of the danger or could by the exercise of reasonable care have discovered it. A landlord is under no absolute duty to maintain in safe condition those portions of the building over which he reserves control. Unless he knows or in the exercise of reasonable care ought to know, of the existence of the defective condition, liability does not attach to him. A.L.I. Restatement of Torts, § 361; Hirsch v. Radt, 228 N.Y. 100, 126 N.E. 653; Kramer v. Stone, 176 App.Div. 549, 551, 163 N.Y.S. 578. The plaintiff concedes that Ems Corp. had no actual notice. Nor was there any evidence of conditions which should have caused the lessor to suspect the danger. Mr. Olian, it is true, testified that jarring and vibration of the ceiling was frequently caused by the moving of heavy cases of rayon by the tenant who occupied the floor above the store premises and that on one occasion he complained about it to the superintendent of the building. But the date of this complaint was early in 1942, before Ems Corp. had acquired title. Hence notice of the jarring and vibration given to the superintendent was not notice to an agent of the appellant. And the vibrations
Subsequently the parties stipulated that the verdict should be reduced to $100,000 as this was all the plaintiff had demanded in his complaint.
See his review of the New York eases in 77 F.Supp. 672.