Kolojeski, Appellant, v. John Deisher, Inc.
Supreme Court of Pennsylvania
March 15, 1968
429 Pa. 191 | 239 A.2d 329
Kolojeski, Appellant, v. John Deisher, Inc.
Sheldon R. Portner, with him Norman Shigon, for appellants.
William B. Freilich, with him Joseph G. Manta, James M. Marsh, and LaBrum and Doak, for appellee.
Lester J. Schaffer, with him Jаmes W. Brown, Jr., and Zink, Shinehouse & Holmes, for appellees.
OPINION BY MR. JUSTICE O‘BRIEN, March 15, 1968:
Madeline Kolojeski, a two-year old child, died, allegedly as the result of lead poisoning caused by the ingestion of lead base paint which had chipped and
Appellants’ occupancy of the premises commenced on or about April 22, 1964, when they entered into a month to month lease with appellee, Deisher. The complaint alleges that on or about January 4, 1966, sоme 20 months after appellants had gone into occupancy of the premises, the minor decedent consumed pieces of paint which had peeled from the living room woodwork, thereby sustaining injuries which resultеd in her death on January 6, 1966. Appellants alleged that appellees were negligent in failing to maintain the premises in proper living condition; failing to inspect the premises adequately to insure the safety of the tеnants; failing to notify the tenants of the dangerous substance with which the living room woodwork had been painted; having caused the living room woodwork to be painted with a toxic substance; and failing to remove and remedy the сondition of the woodwork, and permitting the paint to become decayed, chipped, and peeling. Reduced to its essentials, the complaint alleges that appellees were negligent in allowing the living room woodwork paint job to deteriorate to the point where paint peeled and fell therefrom; and in using lead base paint, which is poisonous if consumed.
In Lopez v. Gukenback, 391 Pa. 359, 137 A. 2d 771 (1958), this court summarized the general liability of a landlord to his tenant for injuries received by the tenant on the premises. We there said: “(1) In the absence of any provision in the lease, a landlord is under no obligation to repair the leased premises, to see to it that they are fit for rental or to keep the premises in repair: [citing cases] (2) a tenant takes the premises as he finds them and the lаndlord is not liable for existing defects of which the tenant knows or can ascertain by a reasonable inspection: [citing cases] (3) a landlord out of possession, however, may be liable (a) where he conceals a dangerous condition of which he has knowledge and of which the tenant has no knowledge or cannot be expected to discover and (b) where he knows or should know of a dangerous condition and leases the premises for a purpose involving a ‘public use’ and has reason to believe the tenant will not first correct the condition: [citing cases] . . .” There is nothing in the complaint to indicate that the landlord was under any duty tо make repairs. Without such a duty, we have no option but to agree with the court below that “no liability on the part of defendants can be predicated upon their failure to repair the premises or in allowing the paint to peel.”
In their brief, appellants argue that there is a question in the case as to whether there had been a promise to repair which induced them to remain in possession. They contend that the sustаining of the demurrer foreclosed proof on this subject. It must be pointed out that the complaint makes no allegation of any such promise or inducement; nor was any amendment to the complaint offered subsequеnt to the filing of the
Appellants’ only possible basis for recovery must arise from the use by appellees of lead base pаint. Such use would support liability only if such use constituted the creation of a dangerous condition of which appellees had knowledge and of which appellants had no knowledge. In this connection, appellants cite a New York decision which we, as did the court below, find to be inapposite. The decision in that case was bottomed on the violation of a law requiring the landlord to make repairs. No such situation exists hеre. Although the situation is tragic, we cannot help but agree that the use of lead base paint in these circumstances cannot constitute actionable negligence. The court below aptly stated: “Plaintiffs havе cited no judicial decisions in this jurisdiction or any statute or ordinance which would justify a conclusion that the use of a lead base paint constitutes negligence. . . . In the absence of compelling authority we cannоt find that the use of lead base paint constitutes negligence, as we take judicial notice that the use of such paint is common and widespread.” Were we to conclude otherwise, we would be required to asсribe to appellees a knowledge and expertise not ascribable, at least at the time of this incident, to people without special training or experience.
Since we have determined that the complaint does not state a cause of action, it is unnecessary for us to
Judgment affirmed.
DISSENTING OPINION BY MR. JUSTICE ROBERTS:
In its opinion sustaining defendant‘s preliminary objections, the lower court frankly admits that a valid cause of action would exist if the use of lead based paint “constituted a latent dangerous cоndition of which defendants had or should have had knowledge and plaintiffs did not.” See Lopez v. Gukenback, 391 Pa. 359, 137 A. 2d 771 (1958); Restatement 2d, Torts, §358(1). This language is then echoed by the majority of this Court which recites that liability would exist if the use of the paint “constituted the creаtion of a dangerous condition of which appellees had knowledge and of which appellants had no knowledge.” Yet, both opinions conclude that the appellants’ complaint fails to state a сause of action. In my view, this conclusion is belied by the words of the complaint itself.
Paragraph 14 of appellants’ complaint alleges the following: “The aforesaid living room woodwork was in a dangerous and unsafe condition as a result of its decayed, chipped and peeling condition and the fact that it had been painted with a poisonous lead base paint; all of which existed for a sufficient length of time so that the defendants knew or by the exercise of ordinary care should have known that the said conditions were dangerous and unsafe for persons in the area, . . .” (Emphasis supplied.)
Paragraph 15(c) further recites that one of the defendants-appellees’ negligent acts consisted of their “failure to notify their tenants of the dangerous substance with which the living room woodwork had been painted; . . .“.1
Since the majority affirms the lower court‘s sustaining of preliminary objections, it dоes not face two remaining issues: Deisher‘s status as a party defendant, and the alleged exculpatory clause in the lease. I note, however, that as to Deisher, the complaint alleges that he acted аs an agent for an undisclosed principal. It is elementary to the law of agency that such an agent would be just as liable to these appellants as would be the true owner-landlords. See Schelly v. Gribbin, 161 Pa. Superior Ct. 20, 53 A. 2d 862 (1947); Laub, Pennsylvania Trial Guide §273.29 (1959). Therefore, in my view, appellants’ complaint is not deficient as to Deisher.
Finally, both Deisher and the true owners contend before this Court that they are exempt from liability
Believing that the preliminary objections in this case should be overruled, and appellees required tо answer appellants’ complaint, I dissent.
Mr. Justice MUSMANNO joins in this dissenting opinion.