Miner v. McNamara , 81 Conn. 690 ( 1909 )

Whether this defendant (The Hubbell Building Company) is liable for the plaintiffs' injury, depends upon whether its negligent or unlawful act was the proximate cause of that injury. "That only is a proximate cause of an event, juridically considered, which, in a natural sequence, unbroken by any new and intervening cause, produces that event, and without which that event would not have occurred." Smith v. ConnecticutRy. Ltg. Co., 80 Conn. 268, 270, 67 A. 888. The last conscious agent in producing the injury is the party liable for it. 1 Beven on Neg. in Law (3d Ed.) 53. The law does not search for the more remote agencies by which the injury was brought about or made possible.

It appears from the complaint that the owner of the building, after it was completed and when this defendant had nothing further to do with it, with full knowledge that it did not conform to the plans and specifications and to the requirements of the city ordinance, that the workmanship and materials were poor, and that the building was weak and dangerous and likely to collapse and fall if it were in any way used or any strain put upon its floors or walls, leased it to the plaintiffs, by whom the facts were not known nor discoverable by ordinary inspection or by any inspection which they were capable of making.

The tenant ordinarily takes the risk as to the condition of the premises which he leases. Gallagher v. Button, 73 Conn. 172, 175, 46 A. 819. But when there are secret structural defects in the premises which render them dangerous for occupancy, known to the lessor but unknown to and undiscoverable by the lessee by careful inspection, the law imposes a duty upon the lessor to make such condition known to the tenant; and failure to do so is negligence on his part which makes him liable for any injury which results to the tenant from such defective and dangerous condition. Cowen v. Sunderland, 145 Mass. 363, 364, 14 N.E. 117; Booth v. Merriam, 155 Mass. 521, 522, 30 N.E. 85; McKenzie v. Cheetham,83 Me. 543, 549, 22 A. 469; Scott v. Simons, 54 N. H. 426, 431;Gallagher v. Button, 73 Conn. 172, 46 A. 819. This is precisely the case presented by the complaint, as between the plaintiffs and McNamara, the owner of the building. His negligence was the proximate cause of their injury, upon the allegations. That injury cannot be attributed to this defendant's negligence in failing to construct a proper building. Its dangerous condition may have been due, in whole or in part, to this defendant's negligence, but that negligence was not the proximate cause of the plaintiffs' injury, because a new conscious agent, knowing of the existence of that condition, intervened, and instead of so acting as to prevent the injury acted so negligently as to cause it.

Nor can it be said that, omitting the allegation that the owner neglected to disclose to the plaintiffs the dangerous condition of the property, a good cause of action against this defendant is stated in the complaint. If he made such disclosure, the plaintiffs could not recover against him, because, in that case, they accepted their term and occupied the property at their own risk. It would be strange if, in such a case, they could recover against his servant, who under his direction had used improper materials and otherwise taken part in the improper construction. The same reason which would prevent their recovery against the owner — their own intervening negligence — would prevent their recovery against the defendant.

It is not alleged or claimed that the owner was ignorant of the manner in which the building was constructed; on the contrary, it is alleged in the complaint and was insisted on in the brief and argument in behalf of the plaintiffs, that he caused it to be so constructed by his agents and servants and had full knowledge of its condition.

Whether the negligence complained of was the violation of a duty imposed by the common law or of one imposed by the city ordinance, that negligence must have been the proximate cause of the plaintiffs' injury to warrant a recovery. There is no ground for distinction between the two. Broschart v. Tuttle, 59 Conn. 1, 20, 21 A. 925. In neither case can the plaintiffs recover, for the reasons already stated. It is unnecessary, therefore, to consider whether the present defendant's violation of the ordinance could in any case create a cause of action in favor of a party injured in consequence of such violation.

The complaint shows that there was no causal connection between the negligence of this defendant and the injury of the plaintiffs, and the demurrer was therefore properly sustained.

There is no error.

In this opinion the other judges concurred.