*1 Joseph J. Reek, Lutz et ux. Jr. vs. John Joseph III, J. Lutz et ux. Reek, John p.a. vs. 23,
FEBRUARY Frost, Roberts, Paolino, JJ. Condon, J., Powers and C. Present: *3 trespass J. These two actions of Roberts, exception are before this court on the of each the ruling justice sustaining of the trial the de- all fendants’ demurrer to three counts of declaration each case. plaintiffs
One of the is minor child who, suing through and next friend, injuries to recover for his.father seeks alleges which he ignited sustained when clothing a fire burning in a area connected with owned defendants. The father, child’s in the other case, consequential damages. seeks to recover Be- liability cause the of defendants to father dependent upon the liability establishment of in the case of the child, unless otherwise stated we hereinafter shall dis- cuss the though issues as declaration, but one that of the child, was before us.
The declaration contains three each which counts, it is alleged that defendants owned a building certain con- *4 taining several tenements for dwelling used purposes. One of these was rented to the plaintiff occupied father and by him and his family, including plaintiff the child. It is fur- ther alleged that passageways certain and a yard area con- with premises nected defendants’ were used in by common thereof, all the tenants and that ignited a fire yard in which ultimately the plaintiff caused the child to injured. The trial sustained the grounds demurrer on the that not plaintiff defendants did owe the in duties stated the vague that the counts, counts were and uncertain, and plaintiff’s allegations did not set a out causal connec- injuries ignition tion between his and defendants’ of the fire.
344 alleged plaintiff legal whether a
We will first consider him The duty by concerning defendants. rule a owed landr Whenever a liability in these well settled. owner’s cases is possessor portions property of rents of that va property thereof portions rious tenants but retains control over the by tenants, which used in common all the has are duty reasonably in a safe condition. keep portions such Vadenais, H. 121; Lawton R. Allen v. William v. 84 Leonick Manville Library, 80; Hall R. I. v. Jenckes Free whether Corp., question R. I. here him which was duty by has stated a owed these defendants scope of rule within the above stated. it was defendants’ alleges first count lawfully persons who
duty “to warn those were the said defendants which premises by conditions created This premises intended.” rendered the unsafe the use scope opinion, clearly enlarges language, above out. duty imposed upon the landlord set rule a hidden unknown allegation In this there is no contrary allegation but on the dangerous condition, burning fire connected open there was condition alleges This a which premises. with the seriously dispute does not danger obvious, in or impose duty upon landlords, a law does warn their adult tenants least, at dinary circumstances used com portion of the of a condition Lawton dangerous. See obviously mon them which is Vadenais, supra, duty a landlord owes such argues that However, plaintiff judgment that fact stand In our to' a of the tenant. to warn duty upon the landlord ing impose does not alone in a condition obvious peril of the involved the child Lombardi our attention to *5 plaintiff directs v. danger. The the Connec contending that therein 510, Wallad, 98 Conn. warn required is to children a landlord held that ticut court We have examined danger. of an obvious find therein nothing support plaintiff’s to contention. On contrary the court at page stated 516 that defend- “if ant’s any, originated consisted leav- ing the fire unguarded and any precaution.” without
The primary duty to exercise reasonable care safety of a child parent rests himor who stands See Milliken Weybosset parentis. loco Pure Food Mar ket, 71 R. Inherent therein obligation is the to warn the peril child of the involved an dan obviously gerous condition. The existence of the landlord and tenant n relationship does not to obligation serve transfer this to the landlord in the absence of some unusual circumstance. Mfg. Co., Davis v. Joslin See 29 R. I. The demur 101, 110. rer to the first count of the declaration was properly sus tained. ' In the plaintiff second count states that it defend duty ants’ reasonably “to fire” confine said and in the third count that it was duty their “to be in attendance thereon or person to have persons some in attendance while said fire burned.” opinion We are of duty landlord, who retains control of the common portions of his premises, keep to those portions reasonably safe for the n useintended includes, involving ignition cases open fire, duty reasonably to confine the fire and at tend it while it burning. judgment In our plaintiff in his second and third legal duty counts has stated a which owed him by defendants. urge they were duty under no to ex- ercise reasonable care to avoid injury to the minor because under allegations set out each count he was defendants’ as a bare they licensee whom owed no duty other than to' him injury avoid willful dr wanton support conduct. they this contention allegation refer to the in consideration of the rental of one of defendants’ tenements father “the permitted and his were family the use of the com- *6 the yard and the use of passageways accesses,
mon and permis- allegation area.” is an of This, argue, the minor acquiescence presence or the of sion mere any give duty to plaintiff on their land which does not rise him. injury to due care to avoid to exercise by area rea plaintiff argues that he was the invitation, implied, resulting of an either or express son relationship from of and the landlord tenant existed the between father and defendants. Some authorities hold right or his to be portions of tenant invitees on the on premises by of used common all tenants rests the law of invitation and not on that of landlord and tenant. Her man 120 N.J.L. and Corp., 437; v. Home Owners’ Loan see Proal Realty Corp., 699; Carlson v. Associated 114 Conn. Camaan, H. 87 N. 389. Branigan In Realty Corp., I., v. Lederer R. 101 Atl. right this court considered the of a on a roof by of used common tenants. The court several “* * * stated: and it is material whether by invitation, express was on the roof or implied, if or even were a mere licensee. She defendant, she * * lawfully right roof *.” In opinion, use portions premises by tenant, his the common family, tenancy invitees created incident letting the contract between the landlord and the allege the well-plfeaded sufficiently tenant. The facts exist “per relationship, consequently ence of the the word may be dis unnecessary pleading mitted” was Co., National Ins. regarded mere DePaola v. surplusage. as 38 R. the trial also said sustaining demurrer, between the alleged
a fact is “which breaks the causation injuries boy and the to the himself.” act of the defendant allegation that the Apparently because of in an injured approached attempt he the fire had been when proximity which had been thrown close toy retrieve a “to to the fire another child of tender years,” concluded the doctrine of intervening applied cause should be *7 here aas matter of law.
The rule that negligent act of a defendant may, by reason of the intervening negligence of a third person, be rendered remote and relieve the defendant from liability long has been in recognized Ward, this Mahogany state. v. 479; McGough 16 R. I. Bates, v. 21 R. I. In Floyd v. Turgeon, R. I. 218, this court stated the rule succinctly when it said page 225, at “Where the aof re sponsible party third original intervenes between the negli gence of the defendant and plaintiff’s injury, the causal connection between the latter may two be broken and such act of party may the third be proximate cause of the injury.”
But recognize we also may concurring proxi that there plaintiff’s mate causes which injury to a and that contribute a defendant’s negligence not always is rendered remote in merely causal sense because a second cause intervenes. Gillogly England v. New Transportation Co., 73 R. I. 456. To make the rule applicable given a the superven ing act must be the responsible person. Floyd act of a third Turgeon, supra. jus We are of opinion that the trial tice the instant case in concluding allega erred that an tion of an intervening act of a “child part of tender years” will, law, allege as a matter of be held to an inter vening cause within the rule so as to relieve a defendant liability original negligence. judg his act ment allegation presents jury such an a question and can not be held as a matter of law to' be the intervening act of a responsible party. third Sroka v. Halliday, 41 R. I. 322. argues further that trial erred in sustaining ground the demurrer on the the child was contributorily negligent as a matter of law. In so contend- language ing points to decision that the “fire child, didn’t come the child went to fire.” We finding a that the perceive that this constituted do matter of law. He was contributorily negligent as a right age tender of his undoubtedly aware of the child’s equally was, we must assume he was be where he usually contributory negligence is this state aware Floyd v. a of law. rarely question fact and question Turgeon, supra. Rys., 11, page 79 R. I. at
In Rosenthal v. United Electric need “It too well settled to citations stated, this court of such tender ordinary applied care as to children degree which children of same years only care to exer expected would be experience education and age, circumstances. Whether cise similar exercised *8 of fact question law was also a required by care such as al jury.” the Here it is properly was submitted to which in area where he yard a leged playing the child was the fire to right approached to that he had a be and retrieve another by near it toy a which had been thrown child. on of the in part Whether such conduct the is, opinion, our the circumstances constituted error find jury, for the and it was to clearly question a fact a matter of contributory negligence as it constituted justice if trial so intended. law, indeed the justice trial whether the question There remains the ground vague- demurrer on the of the properly sustained “Furthermore, he said, first count Referring to the ness. not de- premises The area of the is vague. the count too is tell, In for all we can this country place, fire scribed. from the house.” mile, mile, of a may quarter be half a count, he “If the- said, third Again, referring to the allege ought to good count, to out a here desires set * * to house the fire was with relation the where allege plaintiff had failed to defendants contend that portion of defendants’ where that the fire was on a When the right to be without invitation. plaintiff had a light, appears it the read language of trial is
349 the him vagueness contemplated by the was uncer- tainty as to whether defendants were being called against by defend an action property one who on their in the of a trespasser status or one wlm was there licensee as a matter right. perceive infirmity We no such declaration. Co.,
In Mfg. the case of Vandal R. I. 112, v. Conrad 816, Co., 138 A.2d Lee 21 R. citing 322, v. Reliance Mills we stated, pleading “The cer require rules reasonable tainty in the statement of fact, essential end that party may adverse be informed of what he is called upon at trial, meet allegations to this end should precise be as and definite as nature of the case will rea permit.” sonably opinion has satisfied the requirement certainty. above The test whether the is pleading reasonably and, certain the absence of extra ordinary matter circumstance, pleading evidentiary required.
The plaintiff alleged landlord and has the existence of the relationship, tenant in common all the use tenants of the area, ignited by the existence of fire yard. well facts, being plead These ed, are admitted the demurrer. Richard v. Industrial Co., Trust 85 R. I. A.2d In our opinion, *9 allegations uncertainty such there can be no reasonable part of the alleging that his that of lawfully premises by status was one on the reason of the existence of the landlord and tenant relation ship. Branigan Co., v. Lederer Realty supra. jus The trial in sustaining tice erred the demurrer on ground vagueness. plaintiff's
In each exception case the to the decision sus- taining overruled, the demurrer to ex- the first count is ception sustaining to the decision demurrer sec- ond and third counts sustained, and the case remitted superior for further proceedings. court overruling I J. concur the decision
Condon, C. exception sustaining to the of the demurrer to the first count. I dissent to the remainder of the decision for the my opinion- reason that in the second and third counts of vague apprise are declarations and uncertain and fail to they defendants what will called to meet at agree majority trial. other I words do not with the preciseness that these counts are drawn with the and defi- reasonably permits, niteness which the nature of the case they requirements and therefore do not meet the of the pleading rule of Co., as in Lee declared v. Reliance Mills 21 R. I. 322. Goldberg, Gagnon, plaintiffs.
William R. Ronald R. Afflick, McCanna, R. Robert Francis I. for defendants. David S. et al. vs. Lowry Zoning Board of Review of City of East Providence.
FEBRUARY Condon, J., Roberts, Paolino, Frost, C. Present: Powers and JJ.