38 N.Y.2d 607 | NY | 1976
Plaintiff sustained serious injuries when her left shoe became caught in a hole causing her to fall on her back in the driveway adjoining a supermarket and parking lot leased by defendant Grand Union from Richard Steigler;
We affirm and hold that there was sufficient evidence to support the verdicts against the defendants. In so doing we have found it necessary and appropriate to re-examine our
At trial, plaintiff testified that after completing her shopping chores in the store, she left through the front entrance and turned to proceed along the sidewalk adjacent to the building and driveway, leading to a rear lot where her car was parked. However, the far end of the sidewalk was blocked by cartons and rocks and, thus, she was compelled to walk part of the way in the driveway. She then testified that a short distance after she stepped off the sidewalk into the driveway, her left shoe became caught in a hole, causing her to fall.
Plaintiff described the hole as being irregularly round, approximately 10 inches in diameter and 2 inches below the surface. This description was corroborated by an independent witness, the police officer who was called to the scene of the mishap. In fact, the officer described the hole as being from two to four inches in depth. In addition, the record clearly demonstrates that the area around the hole was rutted, cracked and had holes in it, and, further that plaintiff had been to the same store 10 days to 2 weeks prior to the accident and, at that time, had observed that the accident area was cracked, rutted and had uneven surfaces and impressions.
Testimony was also adduced that Grand Union employees regularly used the driveway to unload delivery trucks at a side door that opened to the driveway, and to return shopping carts that store patrons left in the rear lot.
The executors called a construction superintendent who testified that some two and one-half months prior to the accident, at the request of the owner, he had repaired the parking lot, which had deteriorated due to gasoline spillage and "what not”. Although he did not specifically recall looking at the driveway, he was able to state that the parking area, which he had repatched, had the same aged blacktop surface as the driveway.
Grand Union called no witnesses.
Although it is usually stated that the occupier of land is not the insurer of the safety of those who enter with his permission, his "obligation of reasonable care is a full one” (Prosser, Torts [4th ed], § 61, p 393). Thus, while it is not enough for a
Neither the Grand Union nor the executors seriously contest the applicability of these rules. However, they argue that the evidence adduced to show they had notice was insufficient as a matter of law. We cannot agree. Credible testimony was adduced that the hole was of such size as to be plainly visible, that the condition existed for at least 10 days to 2 weeks prior to the accident and that the driveway area was deteriorated. It was also shown that Grand Union employees often traversed the area and, thus, had ample opportunity to discover the defective condition and have the employer effect a repair. Additionally, it may be argued that because of the blocking of the sidewalk which patrons ordinarily would have been expected to utilize, Grand Union, in the exercise of reasonable care, should have taken additional measures to insure safe passage over the driveway. Moreover, insofar as the liability of the landlord is concerned it is pertinent to note that while he had the parking lot repaired, no effort was made to repair the driveway, which was originally built and laid at the same time, and had at least as much vehicular traffic; all of which when coupled with the trial testimony might reasonably have led the jury to find that the driveway was deteriorated and in a dangerous condition and, thus, that the landlord had constructive notice of that condition.
We turn then to the issue whether control over the premises was established. Grand Union argues that a 1948 easement agreement between the landlord and two other neighboring store owners, as tenants, transferred some control over the driveway to parties other than itself. Reliance is specifi
Insofar as is pertinent here, the 1946 lease
We now turn to the issue of the lessor’s liability to plaintiff.
Relying on our holding in Cullings v Goetz (256 NY 287, 290, supra) that "a covenant to repair does not impose upon the lessor a liability in tort at the suit of the lessee or others lawfully on the land in the right of the lessee”, the lessor argues that plaintiff’s evidence of the owner’s covenant to repair was insufficient to cast him in liability. Plaintiff asserts that De Clara v Barber S. S. Lines (309 NY 620) changed the Cullings rule, at least in cases where the lease expressly permits the landlord "to come and go upon the leased premises as he pleases for the purpose of inspection and repair” (p 630) and where there is the additional evidence, as there is here, that the landlord actually came upon the premises and effected repairs.
The present case falls somewhere between the two cited
The effect of a lessor’s agreement to keep leased premises in repair has generated considerable scholarly discussion.
These rationales no longer retain the vitality they may once have had. The doctrinal limitation of privity of contract in tort actions by third parties was born in the 19th century case of Winterbottom v Wright (152 Eng Rep 402) and was widely adopted (2 Harper and James, Torts, § 18.5). However, by the turn of this century the first cracks in the doctrine were evident (see Huset v Case Threshing Mach. Co., 120 F 865) and New York was in the vanguard of the attack (see MacPherson v Buick Motor Co., 217 NY 382). Indeed, by 1931, Chief Judge Cardozo was able to declare that "[t]he assault upon the citadel of privity is proceeding in these days apace” (Ultramares Corp. v Touche, 255 NY 170, 180). Subsequent decisions by this court proved the correctness of his perception (Greenberg v Lorenz, 9 NY2d 195 [child permitted recovery through father’s privity of contract]; Randy Knitwear v American Cyanamid Co., 11 NY2d 5 [remote purchaser of product permitted recovery]; Guarino v Mine Safety Appliance Co., 25 NY2d 460 [rescuer of product purchaser permitted recovery]). Thus, it came as no surprise that in Codling v Paglia (32 NY2d 330, 339) we eschewed "the temptation to devise more proliferating exceptions’-’ to the privity rule and instead overturned it, at least insofar as it applies to cases involving a claim of strict liability once described as breach of warranty. In so doing we recognized that " '[t]he policy of protecting the public from injury, physical or pecuniary, resulting from misrepresentations outweighs allegiance to old and out-moded technical rules of law which, if observed, might be productive of great injustice’ ” (p 339, quoting Randy Knitwear, supra, at p 13). Similarly, in the case of harm occurring to third parties who have come upon property with the invitation or license of the occupier, and often with the knowledge and consent of the landowner, consideration must be given to protecting these persons from injury, rather than adhering to technical, outmoded rules of contract. As the Supreme Court of New Jersey had occasion to comment in the course of o overturning its privity of contract precedent in covenant-to-repair cases: "Under modern social conditions, the precept of privity is sterile
Likewise the property control distinction made in De Clara, in all candor, appears to rest more on legal fiction than reality. One may ask: What measure of property control did the De Clara landlord actually possess that the Cullings landlord did not? Certainly, the fact that the De Clara lease gave the landlord the right to come and go did not transfer the power to exclude persons from the property or discriminate between who might be invited to enter. Nor, can it be said that by engaging in the right to inspect and repair the premises that the De Clara landlord acquired control of its safety. The landlord’s power was limited to the discovery and correction of found hazards. There, it could not insure that the property, and heavy equipment thereon, was being used in a safe manner or even that defects known to the tenant would be reported. In short, the landlord’s actual control could be said to have been more fictional than real. Moreover, to the extent that the determination might be said to rest on the control actually exercised by the landlord, the result is anamolous for it penalizes the landlord who takes steps to comply with his contractual duty to render the premises safe and in good repair, and immunizes from liability those landlords who do nothing and may actually be in breach of their contract.
The modern trend of decision is toward holding the lessor liable to his tenants or those upon the land with the tenant’s permission where the landlord has breached his covenant to repair (see Ann., 78 ALR2d 1238, 1252, supra)
"A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if
(a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and
(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented, and
(c) the lessor fails to exercise reasonable care to perform his contract.” (Restatement, Torts 2d, § 357.)
We overrule Cullings v Goetz (supra) and adopt the Restatement formulation as the law rule to be applied. The Restatement rule rests on a combination of factors which, we think, more accurately and realistically place an increased burden on a lessor who contracts to keep the land in repair: First, the lessor has agreed, for a consideration, to keep the premises in repair; secondly, the likelihood that the landlord’s promise to make repairs will induce the tenant to forego repair efforts which he otherwise might have made; thirdly, the lessor retains a reversionary interest in the land and by his contract may be regarded as retaining and assuming the responsibility of keeping his premises in safe condition; finally, various social policy factors must be considered: (a) tenants may often
Applying the formulation to this case, it is clear that the landlord is also liable to plaintiff. It is undisputed, of course, that plaintiff was on the land with the permission of Grand Union, that Steigler covenanted to keep the driveway in repair, that the disrepair created an unreasonable risk of harm to plaintiff, which performance of the covenant would have prevented, and that since Steigler had not even attempted to repair the driveway, he failed to exercise reasonable care to perform his contract. We conclude, therefore, that the executors are liable to plaintiff.
Accordingly, the order of the Appellate Division should be affirmed.
Chief Judge Breitel and Judges Jasen, Jones, Wachtler, Fuchsberg and Cooke concur.
Order affirmed, with costs.
. Steigler died prior to trial and his executors were substituted as parties.
. The lease was renewed in December, 1964 and was in full force and effect at the time of the accident.
. (See Bohlen, Landlord and Tenant, 35 Harv L Rev 633; Bohlen, Fifty Years of Torts, 50 Harv L Rev 725, 747; Harkrider, Tort Liability of a Landlord, 26 Mich L Rev 260, 383, 392-400; Eldredge, Landlord’s Tort Liability for Disrepair, 84 U of Pa L Rev 467; 2 Harper and James, Torts, § 27.20; Prosser, Torts [4th ed], § 63.)
. However, this rule is not without exception. It has been held that where a landlord reserves the right to enter and make repairs, and a passerby (i.e., one outside the demised premises without the permission of landlord or tenant) is injured by a dangerous or defective condition upon the land, the landlord may be held liable (Appel v Muller, 262 NY 278).
. See Rampone v Wanskuck Bldgs. (102 RI 30) and Reitmeyer v Sprecher (431 Pa 284) which also overruled precedent and held that recovery in tort could be had against a landlord for breach of his covenant to repair.
. This is now the rule in at least 18 States (Collison v Curtner, 141 Ark 122; Scholey v Steele, 59 Cal App 2d 402; Davis v Marr, 160 Col 27; Scibek v O’Connell,
