FELTON, BY FELTON v. Spratley

BECK, CERCONE, Before POPOVICH and JJ. POPOVICH, Judge. grant are askéd to review the of the motion for sum-

We mary judgment against plaintiffs/appellants, Shakeema Felton, a minor her parent guardian and natural Lucretia Felton, right. and Lucretia Felton her own affirm. We reviewing imposition summary judg- a trial court’s

When ment, stated: we have

Summary judgment made available Pa.R.C.P. 1035 pleadings, depositions, interrogatories, when the answers to supporting admissions on file and affidavits considered to- no gether genuine reveal issue of material fact and the moving party judgment is entitled to as a matter of law. To fact, genuine determine the absence of a issue of material light we must view the evidence the most favorable non-moving party any against and doubts must be resolved entry In summary judgment. doing, accept so we well-pleaded appellant’s pleadings give true the facts appellant the benefit of all reasonable inferences to be Summary judgment drawn therefrom. is appropriate only in those cases which are clear and free from doubt. Co., Dume v. Elkcorn Pa.Super. 533 A.2d (1987) (Citation omitted).

Instantly, plaintiffs complaint against filed a the defen- dants/appellees, Spratley Mollucye Jessie Pear- Spratley son, Executrix, Executor and respectively, of the Estate of Felton, Marie Spratley alleging beginning the minor-child May thereto, of 1989 and for a long prior ingested time (Lucretia Felton) paint chips while she and her mother resid- (Ms. grandmother Long). ed with the The apartment which the trio lived was owned within the control of and/or Spratley, the late Marie “who was then and responsible there Para- premises.” [rented] care and maintenance for the graph careless- “negligence and premised upon was

Liability in the sus- resulting Spratley of the defendant —Marie ness” entitling minor-child her to Felton injuries by the taining of followed matter was filed and An with new answer judgment. it summary judgment, wherein motion for defendants’ did not cause of and they were “unaware” was stated fact, it contend- premises. condition on the hazardous aware of the mother were well minor-child and her ed that the notify failed to the defendants but conditions which existed existed while the paint which peeling/chipping (Long’s Exhibit “C” Long. Ms. See solely by held were 51). Thus, 41-42, argued appellees, Deposition pages at they of which to correct a condition obligated not “they were ... [and] mother plaintiffs and of which the had no 10 and 11. Paragraphs fully ... were aware.” grandmother plain- Further, cited various sections the defendants that, between wherein she stated deposition tiff’s mother’s the minor- prior but through May of 1988 October the condition of illness, concerned about she was never child’s matter to report (peeling paint) sufficient apartment of Law Memorandum Appellees’ the defendants.1 See According- at 5-7. Summary Judgment Motion for Support of defendants, not may the landlord ly, averred the ruling for unknown conditions under strictly liable (1968). Inc., Deisher, 191, 239 A.2d 329 429 Pa. Kolojeski v. at the time argument countered with plaintiffs were the hazards decision However, longer requires “... it no such widely known. paint poisoning As the hazards lead expertise training. by defendants’ by property purchased 1987 [ were —date 15,1964 gener- known to the commonly April decedent was ]— * * * [And, widespread of the use judicial notice public a]s al equally it remains proper was lead based hazards But, for 1987. appropriate “chip defendants were notified Less one month after the than premises repainted. ping paint” paint was removed and the the old equally judicial well known and therefore notice of were equally appropriate judicial hazards would as as was the be notice of the use in widespread Reply 1968.” See Plaintiffs’ Summary Judgment Defendants’ Motion for at 5-7. plaintiffs “Society general may Yet the admitted that: ‘fully’ paint, society not be aware of the hazards of lead ‘fully’ is not aware of general the ramifications of most haz- Id. at 7. Nonetheless, ards.” plaintiffs acknowledged presence the defendants lacked actual notice of the paint in the apartment, charged but that the “De- known, by fendants should have which must resolved Id. at 10. trier of fact.” court, arguments by

Oral were heard after which the defendants’ motion for summary judgment granted grounds: following

In their motion for summary judgment, defendants execu- tor and executrix of the landlord’s estate assert that plain- peeling paint tiffs were aware of the and hazardous condi- [sic ] notify tion. But failed to the landlord under after the ill ingesting paint. child became from They assert further their first notice of lead they by was when were notified the Philadelphia Department. Health This notification also came after the ill ingesting paint. child had become from The landlord subsequently repainted the apartment about month later. matter, argument

At the oral in this plaintiff conceded that the landlord had no actual notice from the tenant of any defective or condition. As the evidence that he notice, asserts for constructive plaintiff’s counsel asserts that there is paint. the hazards of lead The assertion of no actual notice was supported depo- testimony sition and it is to. conceded Under the circum- stances, holding the court is constrained supreme Koljeski court in the matter versus Deisch- [sic ] [sic ] er, Inc. found at 239 A.2d 329. court in Koljeski stated that where the landlord had no notice that the walls painted were until after the had had plaintiff after the and inspected, professionally been held liable could not be poisoning, [he] for lead treated been reasoned court supreme And the injuries. for the statutory requirement, in the lease any provision absent premises the duty had no affirmative landlord paint. for lead decision.

This with that may agree not may or court supreme However, follow the lead court must public court notes matter. The in this court increased. paint has dangers of lead knowledge of the however, landlords law, find as a matter court cannot potential of this all premises to rid an affirmative hazard. granted summary judgment

Therefore, motion for dismissed. defendants is against complaint timely Thereafter, filed a plaintiffs at 14-16. N.T. 7/6/93 review, of which the first for our raising three issues appeal for failure responsible a landlord can be asks: “Whether when premises from the demised lead based to remove notice, constructive only does not have actual but the landlord “constructive Further, argue that the plaintiffs notice[?]” trial and not in the context of a issue should be decided notice” summary judgment. for in a motion we deem posed, our resolution issue Preceding legal propositions forth certain well-settled it to set prudent tenant for of a landlord to his concerning to-wit: premise; on the received the tenant injuries lease, landlord is (a) in the any provision in the absence to see premises, the leased obligation repair no under keep premises or to fit for rental they it that are them (2) as he finds ...; a tenant takes repair existing of which defects landlord is liable and the inspec- by a reasonable knows or can ascertain the tenant however, (3) may ...; possession, a landlord out tion of which (a) condition dangerous where he conceals liable expected to discover and cannot be has he condition (b) know of a knows or should where he involving “public purpose for a the premises and leases use” and has reason to believe the tenant will not first ...; (4) correct the condition a landlord of a multi-tenanted building, reserving control of the common approaches, such sidewalks, etc., passageways, as or parts building tenants, walls, common to all such as the roof and is bound keep such approaches parts reasonably and safe for the use of tenants and their invitees and a landlord becomes where he hable either had actual notice of a defective condition chargeable notice, therein was with constructive because had he exercised inspection reasonable he would it____ become aware Gukenback, 359, 137 (1958) Lopez 771, 391 Pa. A.2d 774-775 (Citations omitted). Accord Kolojeski, supra; Brown v. Mar Inc., athon Realty, 170 A.D.2d 565 N.Y.S.2d 220-221 (1991). it

Instantly, undisputed the defendants had no actual knowledge of the lead-based content of the paint or that it was chipping/peeling prior to notification from the appropriate governmental authorities, which resulted in a rectification of the matter within a month of notice.

As a consequence, plaintiffs proffer argument the novel that the level of knowledge relating to the hazards associated with the use or presence of lead-based proliferated to stage “[b]y plaintiffs ingestion of lead-based [— paint allegedly in May occurred of 1989 and prior it] thereto — commonly known to the public certainly should have been known [constructive to one who rents notice] * * * housing, low income such as the defendants [so to] an creat[e] affirmative for and remove lead paint.” Appellant’s Brief at 7 and 9.

To buttress their notice” “constructive assertion as to the dangers of paint, plaintiffs point to a 1966 (Section Philadelphia Health Code recognizing 6-403 the haz- ards of the product), Congress an Act of (requiring the discontinuation and removal of lead housing federal (42 (7) U.S.C. 4801 et seq.)) and seven newspaper reports from Philadelphia area spanning 1986-1991 on the topic of a 1991 final reference to dangers paint, subject. article on the same magazine to the defen- Overriding our of whether to ascribe decision paint, of lead-based “constructive notice” dants apartment it from plaintiffs’ failure to remove and the Kolojeski ruling. being is the complaint lodged, of a advance preliminary Kolojeski, grant Court reviewed the defendants/landlords, who had objections favor of the been of a who had died tenants/parents minor-child sued essentials, the complaint “Reduced its paint poisoning. allowing living were allege[d] appellees negligent point where job room woodwork deteriorate therefrom; using paint, and in lead base paint peeled fell if consumed.” 429 Pa. at 239 A.2d at poisonous which is Court, Kolojeski sustaining preliminary objec- in The tions, wrote: only possible recovery basis for must arise

Appellants’ use by appellees paint. from the use Such base support liability only if such use constituted would appellees of a dangerous creation condition of which had In knowledge appellants knowledge. of which had no connection, cite York decision which appellants this a New below, we, inapposite. The as did court find to be in a that case was bottomed on the violation of law decision to make No such situation requiring repairs. landlord we Although tragic, help exists here. situation is cannot circum- agree but that the use these base court negligence. stances cannot constitute actionable judicial “Plaintiffs cited no deci- aptly below stated: jurisdiction in this or ordinance which sions statute justify of a lead would a conclusion the use base ** * In negligence. compelling constitutes the absence authority, we find that use of lead base cannot judicial as we notice that the negligence, constitutes take widespread.” use of such is common and Were we otherwise, required we would ascribe to conclude appellees ascribable, and expertise not at least incident, at the time of this people without special train- ing or experience. 193-195,

429 Pa. at Roberts, 239 A.2d at 330-331. Justice joined Musmanno, J., by grounds dissented on the complaint stated a by cause of action alleging that the wood- work was in condition as a result of its chipped/peeling state and the fact that it had painted been poisonous with a paint; or, lead-based all of which was known care, of ordinary exercise should have been known the defendants. reached,

Given result it is obvious that the Majority persuaded was not to adopt per se of negli- rule (which, gence essence, would have translated into a strict standard) liability involving cases the use of lead-based Jiminez, paint in rental property by landlords. See Garcia v. 184 Ill.App.3d, (1989) 132 Ill.Dec. 539 N.E.2d 1356 (“... plaintiff asserted that defendant should pre- have been from denying cluded knowledge that the premises contained paint. so arguing, plaintiff seeks to impose a form of strict landowners property whose contains lead-based paint. Such a result is not contemplated by the cases.”).

Moreover, unlike Koloje appellants, we find that ski’s holding owner, property that a absent actual notice of a hazardous condition on the premises, will not be liable to a tenant injuries from flowing such a condition is still law in this Commonwealth. applicable case, As to this it is conceded by the appellants that the appellees had no actual notice of the premises. N.T. at 14-15. This 7/6/93 appear would to appellants’ undermine the cause of action sounding negligence against the appellees under the teach of Kolojeski. ings However, this does not an bring end to the case.

It is the appellants’ contention that the dearth of informa- tion on the hazards of has burgeoned since the 1968 decision to the point the appellees notice” of the dan- had “constructive be held to have should notice, urges appel- This constructive paint. gers to lants, duty appellees’ part on the created affirmative an discovery. The upon such a condition remedy for and here, appellants, continue constitutes to do so failure negligence.

Generally, the doctrine constructive application party part faith on the notice is the result bad having charged A with charged person with notice. is knowledge putting he has of facts notice when constructive raised, is duty inquire him Once the upon inquiry. as he would have knowledge to have such party deemed ordinary intelligence and under- acquired the exercise standing. make charged inquiry an party

A is not has from a information come allegedly-provoking unless the person put A is not notice respect. source entitled or rumor, bystanders, loose conversation bills, of hand at least or the distribution published notices It saw the party it is that the material. unless established only be not must generally has matter been party, must directly information communicated but be person from an which would come authentic source to disregard. careless added; 124-125 footnotes (Emphasis

P.L.E. Notice 3 at omitted). Further, vein, that: in the same it has been written danger notice of or which is knowledge or a defect negligence need

necessary impose liability order of a condi- actual, not be but before constructively the instrumentality in an can visited tion length for a only have existed sufficient situation must discovered, it also be duly it to be but must of time enable observation, upon inspection, capable ascertainment required sought of the one to be supervision legally knowledge. with such bound added; footnotes Negligence (Emphasis § 23 at 42-43

P.L.E. omitted).

484

Based on the preceding, to hold appellants accountable finding necessitates a that “inquiry” on part of the land lord rose to the level of a “duty”, and would lead to the knowledge of a requisite fact by the exercise of ordinary diligence and understanding. Pennsylvania Range Boiler Co. v. City Philadelphia, 34, (1942). 344 Pa. 23 A.2d 725 As applied instantly, of a landlord to a tenant premised on negligence theory must by be established proof of some by direct omission the lessor of performance of a duty which owed to the lessee order to make the he/she Co., liable. See Groover v. Magnovox landlord 71 F.R.D. (W.D.Pa.1976), citing Kolojeski, supra; Harris v. Lewis Co., town Trust (1937). 326 Pa. 191 A. 34 appellants have failed to point any authoritative holding source that a landlord has duty (“legally” imposed) presence lead-based in rental property, the failure of which constitutes negligence. For instance, the 1966 Philadelphia ordinance (acknowledging the dangers of paint) lead-based by cited the appellants preceded years two the Kolojeski decision. Yet, no mention of its existence or impact on appears, despite the fact that the ordinance and case originated in Philadelphia County. We, therefore, place little weight upon an given ordinance no recognition by the courts at the time of Kolojeski.

The relevance of the newspaper reports magazine arti- cle on referred to by appellants fare no better. There is no averment appellees “saw the place material” to them on “constructive inquire notice” to into presence of lead-based apartment question. See P.L.E. § Notice 3 at 124.

Lastly, the 1971 Act of Congress is a piece legislation which prohibits the application of lead-based utensil, toy or furniture and residential structure constructed rehabilitated government. federal See 42 U.S.C.A. 4831(a)-(c). Yet, the promulgation of affirmative steps to ... “remov[e and] such eliminat[e] hazards” have been re- stricted to purchasers and tenants of all HUD-associated housing prior constructed to 1978. See C.F.R. Part 35 Thus, § 1, 1993); seq. 42 4822 et we (April U.S.C.A. the directing sources with no authoritative presented been paint in the duty inspect of for lead-based imposition a to concerned, is the property commercial private sector where of negligence. an act of which will be labelled failure by appel the the have examined cases referred We which adopt their that we rule support argument in of lants upon a landlord to duty an affirmative ascribes his/her by the paint. No case cited property rental for lead-based of expansive and endorsement appellants makes such a bold are landlord and tenant.2 We negligence the law of between to do now. persuaded so 859, Corp., 238 713 Realty 38 Misc.2d N.Y.S.2d 2. See Acosta v. Irdank landlord, here, (1963), the unlike case where the court found the apartment knowledge walls rented to the of the broken in the had and, therefore, containing paint, the parents minor-child’s lead-based proper failing keep premises negligent the in defendant was in Jiminez, 545 127 Ill.Dec. repair. v. Ill.2d 136 Garcia (1989), proved premises contained plaintiff the that the 109 N.E.2d paint, establishing condi thus the existence of lead-based tion, knowledge of the and the defendant denied actual or constructive appeal, On the jury favor of the defendant. condition. The found in upheld the court refused to judgment in was favor defendant property liability on contained impose a form of strict landlords whose plaintiffs paint, attempted by with the being the here lead-based wanting by approach this of a constructive notice found endorsement Court. Johnson, (La.1993), Next, 70 dealt the of v. 612 So.2d case Tillman the summaty judgment in favor of a reversal of a motion for with fact genuine issue of material defendants. The court ruled properties paint the as to whether the lead-based on defendants’ existed plaintiff’s for presented an to the minor-child unreasonable risk harm liability Similarly, in purposes of La.Civ.Code art. 2317. strict under (1989), Griffith, Hardy Conn.Sup. 49 the court held 41 569 A.2d requir- breached a state statute local ordinance that the defendants stan- premises which not conform federal ing that did Also, dwelling unit unfit for human habitation. dards shall render (§ 47a-7(a)(2)) imposed an statute state affirmative repairs keep premises fit and all in a upon the landlords to make ordinance, protection for the condition and a violation of the habitable public, negligence as was construed as a matter law. Pennsylvania, and are not pieces legislation exist in we No similar concerning adopt approach ready cases a strict and tenants. landlords Lazarus, (Mo. appellants also Norwood v. 634 S.W.2d cite ingestion plaintiffs’ damages for child’s App.1982): award their stringent If a more standard of care is to be applied premises paint, landlord whose contain lead-based more appropriate respond forum with such a rule would be the See, legislature. e.g., Residential Lead-Based Paint Hazard Act, Thus, seq.3 U.S.C.A. 4851 et absent on any statute subject Kobjeski, and the continued we will viability Dunson v. judgment affirm the favor appellees.4 Cf. apartments of lead-based rental owned different defen- (Lazarus Bukovich) upheld, dants in the & was case of former knowledge it he defendant was concluded that had of the lead-based Bukovich, paint. despite As for the co-defendant his denial actual or constructive flaked, that there was lead on the and it evidence court to sufficient to warrant a finding porch that there was lead base it flaked and that Bukovich, ingested by and the child and that saw to the who purchase paint, presence of the knew or should have of known the of paint. Lastly, produced our case own search has the of Underwood v. Risman, (1993), judgment 414 832 Mass. 605 N.E.2d wherein the plaintiffs subject of favor the was reversed for the defendant was not liability disclosing possibility under a not the of state statute for lead- paint dwelling prospective based in a residential to childless tenants. Although liability would attach under the statute for of nondisclosure paint, the hazards associated with the lead-based court refused to impose liability person for of a the nondisclosure fact not known to against liability instantly. sought. whom is the case Which is Additionally, reproduced supra, unlike cases we have neither a knowledge part warranting statute nor on the of the landlord liability plaintiff-child’s ingestion attachment of for the of lead base paint, creating let a alone strict standard of care in landlord- paint ingested tenant scenarios where been a lead-based has child. so, legislation 3. Even a of the it review federal discloses was not aggressive steps implemented inspect until that more were and, then, paint properties, remove lead-based from residential it was government’s restricted to the federal involvement as either refurbish- agent ing or initial contractor. No effort has been made to address problem private of lead-based sector. issue, ruling necessary 4. Given our on the not initial we do deem it respond appellants’ question to the second of: "Whether Court widespread should take notice paint, especially dwellings based young where there are children.” Kolojeski, supra. matter The is rendered moot under Likewise, regard proffered by to the appellants’; third claim to- implied warranty habitability wit: “Whether the of holds the landlord liable, notice, strictly upon based for the constructive continued exis- paint upon premises tence which lead caused therein[?]”, injury residing appellants children we find that the theory recovery anywhere complaint failure to list a such in their (Ala.1979) (Dis- Realty, 369 So.2d 792, 794-795 Friedlander upheld a failing to state claim complaint missal that, if landlord knew of lead- holding even with court’s appeal walls, reasonably foreseeable it was paint on based on the rented injured by children would be father). affirmed.5 Order

CERCONE, J., concurring opinion. joins and files a BECK, J., dissenting opinion. files a CERCONE, Judge, concurring. colleague Judge write my Popovich join opinion

I correctly court the trial merely emphasize separately Deisher, v. governed by recognized that this case Inc., (1968), Pennsylva- wherein the 429 Pa. 239 A.2d 329 impose upon affirmative refused to an Supreme nia Court for lead based property landlord to rental statutory requirement to do in the absence contamination instantly Philadelphia applicable imposes ordinance so. if, arguendo, were to Even we find renders the matter waived. prevail given preserved, appellants that breach would not matter prove warranty habitability requires he or she implied a tenant to condition, of a that the landlord gave notice to the landlord defect necessary opportunity repairs, and that the to make had reasonable Holmes, Pugh A.2d do See 486 Pa. landlord failed to so. (1979). 897 giving appellees appellants notice as the conceded not the Inasmuch illness, of peeling paint the minor-child’s the element until after notice, implied warranty on of of action based needed to a cause missing assignment to the habitability, is and with that the of would be unwarranted. Id. defendants question appellants: seem to hold the pose We the "You 5. would chips by your appellees ingestion paint for child on liable the of notice,' theory assuming the information was so of 'constructive paint place on widespread dangers the of lead-based as to them on dangers paint?” not wealth of informa- of Would this notice the to to just you to so as ask the landlord tion have been available paint? premises for lead-based the may one not landlord accountable without We believe that hold a part knowledge the the tenants of the lead-based questioning the argument problem, notice” paint we were to embrace the “constructive if point appellants ready do which are not to at this in time. the we 488 duty on

the a landlord to correct condition hazardous Department which has been identified the of Public Health. 6-403(4)(b). However, Philadelphia Municipal § See Code the length of time within which must property’s the owner act is left Department. to discretion Id. 6- 403(b)(b)(.1)(.a). case, found, In this the trial court and appel concede, lants the landlord had no actual knowledge of based paint premises prior lead hazard the demised receiving notice to that effect from the Board Health. The trial court further determined that defendants/appellees acted in compliance Philadelphia with the ordinance and corrected thirty the lead based hazard within days receiving after whether, question actual notice of the problem. The under circumstances, Kolojeski expanded these rule should be impose liability alleged for the landlord’s “constructive knowl edge” of the hazardous condition must be left to our Supreme Court for resolution.

BECK, Judge, dissenting.

I dissent. Deisher, Kolojeski Inc., 191,

In v. John 429 Pa. 239 A.2d 329 (1968), supreme court decided that a could landlord not be injuries, liable his tenant’s lead induced where prior landlord had no actual or notice of constructive so, condition. stated doing court otherwise, we to we required “[w]ere conclude would be ascribe knowledge expertise [the defendant-lessors] ascribable, incident, at at least the time this to people special training experience.” without at Pa. added). A.2d 330-31 (emphasis at Kolojeskis’ The child died from' poisoning almost thirty years ago, in 1966. Id. at 330. A.2d at that, court door open possibility left the for the at future, some point would poisoning people indeed be “ascribable ... special training and experience.”

without Id. at 239 A.2d at holding court, although constrained

The trial revisit- be this issue should obviously thought Kolojeski, ed: aware has become whole world the 1968 decision the

[S]ince knowl- of common as a matter dangers paint of lead anything know about we don’t say the courts can’t edge and court that, sitting in code enforcement judge especially place lead down you can close knowing violations. plain- summary judgment against After granting

R. 123a. so appeal to file an tiffs, frankly urged them judge the trial opportunity to review have the court would appellate that an R. 134a. the matter. subject purchased property in this case

The lessor grandmother Felton’s rented Shakeema 1964. on its walls

1986, to the lead exposure the child’s and poison- After the lead May around apparently occurred Philadelphia tested leased City of ing diagnosed, was detected; the lead presence premises, and was removed. paint then defendant-lessor did conceded that the parties on the presence

have actual notice court, in However, could even property. is common “that the use such judicial take notice Moreover, early as at 239 A.2d at 331. widespread.” Id. Philadelphia recognized had City § 6-403. The current Code paint. Philadelphia of lead based provides that: ordinance any to remain on coating based person permit

No shall utensil, or the exteri- furniture, product household toy, food surfaces, appurtenances or or interior fixtures unit, unit, house, insti- dwelling rooming rooming dwelling, may surface facility where the type or similar tution years of six age under the readily children accessible determines Public Department [of Health] where the hazard creates health presence coating of lead based age under the of six. to children 490 6-403(2)(d) (as 1977).1 §

Philadelphia Code amended provides same ordinance a procedure through which the “De- Health, upon of partment application by any Public owner or premises, in control of or person shall test cause to be tested said to of presence determine lead based coat- 6-403(4)(a). ing.” § The existence of a similar ordinance previously led finding has to the defendant lessor “should known on of paint [plaintiff’s] that the the walls apartment might contained lead which to harmful Realty Corp., Acosta Irdank occupants apartment.” 859, (1963). 713, 38 Misc.2d 714 N.Y.S.2d addition, 1970, by government the Federal had enacted (42 Poisoning Lead-Based Paint Prevention Act U.S.C. seq.). 4821 et § At least of the Act’s part purpose was to public dangers increase of paint poison- awareness lead 91-1432, ing. Report No. Cong. Senate U.S.Code & Ad- (December 1970).2 17, 30, p. min.News I by believe time the incidents this action took place, the had defendant-lessor reason to exis- know tence and spaces, lead-based residential especially where there are young present. children Section section, majority though 1. The make much of the fact that this code apparently However, enacted in was not discussed in the decision. 6-403(2)(d) § language we note that the current was not section, passed until 1977. The relevant code as enacted on March only read as follows: (2) Prohibited Conduct. (a) person apply toys, No shall or furniture house, unit, any dwelling, rooming dwelling interior surfaces of rooming facility occupied or by unit or used children. (b) sell, persons toys No shall transfer deliver or furniture to applied. which lead has been 6-403(2). Philadelphia may Code It well be code section was inapplicable Kolojeski, facts or even that the ordinance was too new to be considered the court. Nonetheless, is the issue not whether lessor should be held liable ordinance, for violation of the but that its existence shows that the presence lessor dangerous, should have known that the of lead was prohibited by therefore law. Although federally-funded housing, the Act was aimed at its enact- problems ment indicates that associated poisoning widespread required were national and local attention. (Second) Torts, provides perti- Restatement 358 of the part: nent his

(1) or fails disclose A who conceals land lessor artificial, condition, which natural or whether lessee persons harm to physical risk unreasonable involves upon others the lessee and land, subject his lessee or sublessee the consent the land with has the lessee the condition after harm caused physical if possession, taken of

(a) to know or have reason does not know the lessee involved, and or the risk the condition (b) the condi- has to know of knows or reason the lessor involved, and has tion, the risk or should realize and realizes the condi- not discover expect that the lessee will reason to or realize the risk. tion (Second) 358(1). The to § Torts comment of

Restatement of a knowledge § explains 358 that constructive has “he to the lessor when imputed should be condition intelligence, or from of reasonable person information which a that the condition own would infer superior intelligence, of his its will would realize that existence exists ... and addition of harm.” 358 com- physical an unreasonable risk involve to had reason enough [the defendant] b. “It is that ment know.” Id. of dangers awareness

The increased a duty part of poisoning rise to certain paint gives duty compel- even more impose to such a is lessor. The need foreseeability injury young when we consider the ling v. See Norwood paint chips are accessible. children when (“It Lazarus, 584, 587 is well (Mo.App.1982) 634 S.W.2d years proclivity put that children tender known mouths.”); their hands into their they get can into anything N.Y.S.2d Realty Corp., Misc.2d at 238 Irdank Acosta (“That up go picking the house small children around at everything within their reach and it in placing their mouths known.”).3 attempting to eat it well is

It expect is not unreasonable to that when Shakee- injured ma Felton was paint appel- the lead-based lee’s property, sufficiently lessor should have been aware to at least have paint existence and tested. Furthermore, in the event that reason- made, testing discovered, are able efforts and lead is landlord, condition I should be abated. believe that a who rents property profit, testing owes the and abate- ment to his or her tenants. majority presumes imputing this awareness automatically

landlords leads to strict defendant- paint-related injuries lessors whenever lead I disagree. occur. permitted Defendant-lessors should proffer be evidence they subject premises caused the tested for lead- they based after possession, came into corrected If, defects time, discovered. at that property pro- was lead-free, nounced to be evidence to that effect also would be addition, probative. prove the lessor could that where lead removed, subsequent once all coats of had no more legally permissible than the levels of lead.

Finally, majority that, point makes event a lessor to have constructive the exis- tence and of lead paint, the tenant also must be held to have knowledge. such Majority Opinion at 488. I do think a that of lessee residential should be to landlord, the same standard a essentially who is in the reasoning 3. This is not unlike that behind the "attractive nuisance" doctrine, provides possessor which of "bodily a land is liable for trespassing years by harm to children of tender a caused structure or land, other artificial condition” on possessor maintained the which the children, knows or should impulses know “because of their natural instincts,” "likely trespass upon discovering are to without involved,” realizing or utility condition the risk and where the of maintaining slight compared condition is to risk Erie, 417, 420, Krepcho (1941). Pa.Super. children. v. 21 A.2d 461 (Second) See § also of Restatement Torts "Artificial Conditions Dangerous (1965) Highly Trespassing (requiring Children” also that possessor of land danger exercise reasonable care eliminate the Turk, children); protect otherwise Jesko v. 421 Pa. 219 A.2d (1966) 339). (adopting Restatement has more control usually The lessor rental business. property lessee, and if this is risk-creating defect than does the over case, such may the lessor defend on particular not so comparative negligence some Although measure grounds. circumstances, my opin- it is applicable under certain may be lessor, by that a should be entitled assume ion that lessee time, lead- any would have discovered and abated point this property.4 on the may have existed related defects Where, case, injured by as in this a child has been allowed paint chips which have been consumption negli- on property, presumption lessor to remain arise, presumption may and that be rebutted gence should efforts discov- evidence the defendant-lessor’s reasonable dangerous condition. er and abate the grant judgment, and re- summary I would reverse put proof reasonable quire defendant-lessor lead-paint effort made to discover and abate the related defect.

640 A.2d 1368 Pennsylvania COMMONWEALTH STANSBURY, Appellant. Ronald Superior Pennsylvania. Court of

Submitted March 1994. 2,May Filed "[djiscontent growing has 4. Professor Keeton described a with the immunity appearance from tort of unfairness the landlord’s increasing liability,” willingness by impose an courts on some the lessor tort of reasonable care. Prosser Keeton (5th 1984). p. Ed. The Law Torts

Case Details

Case Name: FELTON, BY FELTON v. Spratley

Court Name: Superior Court of Pennsylvania

Date Published: Apr 29, 1994

Citation: 640 A.2d 1358

Docket Number: 2493

Court Abbreviation: Pa. Super. Ct.