Germansen v. Egan

The primary question for consideration, in my opinion, is whether or not the duty of keeping in repair the skylight of the particular room in which plaintiff worked, rested upon defendant. The duty of keeping in repair a roof or skylight on a roof rests upon the party who exercises dominion and control over the premises involved: DuBois Recreation Co. v. Boyle,95 Pa. Super. 219, 221. The obligation to repair follows dominion and control. Where dominion and control over a portion of the premises demised is retained, the duty to repair remains, and conversely where no dominion or control is retained, the duty to repair does not arise. The burden of proof rests upon the injured person to show that the landlord retained possession and control for himself or other tenants, over that portion of the leased premises wherein the injury complained of occurred, in order to charge him with the duty of keeping the same in repair: Brauner v. Snell (1922)35 Idaho 243, 246. There is nothing in the testimony to indicate that defendant had expressly retained dominion and control over the roof or skylight above the one-story workroom; nor that she had assumed dominion and control.

The testimony of defendant's janitor that unrequested by anyone he had a week before the accident, fixed leaks in the skylight by cleaning off snow, is not indicative of any assumption of control by the landlord. It is rather to the contrary, when considered in the light of the tenant's testimony that, "He (the janitor) did all the cleaning and anything particularly that was to be done that we wanted done, that was his work, we would ask him and he would do it." In no event could the tenant increase the scope of the landlord's obligation by his own control over the janitor's services, and this is especially so here where, unrequested by the landlord, the janitor undertook merely to clean off the snow, but not to repair the skylight.

Whether an implied obligation on the part of the landlord to repair the skylight can be founded upon the fact that the landlord retained a portion of the building for his own use and also demised some portions to tenants other than plaintiff's employer, remains to be considered.

It is a well established principle that the owner of a building who leases it to different tenants, and expressly or impliedly reserves portions thereof, such as stairways (Lewinv. Pauli, 19 Pa. Super. 447) or paths (Fortunato v. Shenango Limestone Co., 278 Pa. 409,123 A. 482), for the use in common of different tenants, is liable for any personal injury to a tenant, or a person in privity with a tenant, due to defects in the portion of the leased premises of which the landlord so retains control. However, commenting upon this rule, the New York Court of Appeals said, in the case of O'Dwyer v. O'Brien, 13 Appellate Division 570, at p. 573: ". . . . . . it (the rule) applies only to passages, stairways or alleys used in common by the different tenants of one building. In the case at bar, the alleyway was only used by one tenant, and was a part only of one tenancy, and, therefore, the same rule would be applied as if the plaintiff's husband were the sole tenant of the building." In this latter case, the front portion of the tenement was leased to one tenant and the rear portion to the plaintiff's husband.

The case of Margolius v. Muldberg, 88 N.Y.S. 1048, also adopts this limitation to the general rule. The material portion of the case is reported as follows: "The plaintiff, a subtenant under a lessee of, and in possession of, certain premises of the defendant, brought this action to recover for alleged damages to his goods from rain water coming through the roof of the extension, of which he was the sole occupant. His complaint was dismissed when he rested, and rightly, because the owner, in the absence of contractual relation, was under no obligation to keep in repair the particular roof of a part, not for the protection of the tenants generally, but solely for the plaintiff. . . . . ."

The court in the latter case also based its decision on the contributory negligence of the plaintiff. Similar recognition of the soundness of this limitation is given in the case ofLichtig v. Poundt, 23 Misc. Rep. 632, 52 N.Y.S. 136; Rosenthalet al. v. Seville et al., 221 N.Y.S. 198, 199; Lawler v.Capital City Life Ins. Co., 68 Fed. (2) 438, 439.

This limitation to the general rule is assumed in the case ofDuBois Recreation Co. v. Boyle, supra. In this case, a tenant brought an action of trespass against a landlord to recover for damages to his goods. The defendant's property was three stories high in front. The plaintiff leased only the first floor as a bowling alley. At the rear, the property was only one story high, so that this part of plaintiff's leasehold was next to the roof; but the defendant had constructed on the roof of this portion of the building, a walk for use by tenants of the second and third floors of the front portion of the building to secure supplies from the rear. The jury brought in a verdict for the plaintiff. On appeal by defendant, the court said, at pp. 220, 221: "The verdict of the jury is conclusive that the roof of the one-story part of defendant's building did not pass to plaintiff as part of the leased premises, but remained under the dominion and control of the defendant. . . . . . The duty of keeping the roof of the entire premises in repair thus rested on the defendant; . . . . . . and defendant recognized her duty in this respect by numerous promises to repair the roof, so to prevent damage to plaintiff's bowling alley. Her failure to perform this duty, thus recognized, rendered her liable under the authority of Minor v. Hogg,67 Pa. Super. 419, 420, for the plaintiff's resulting damage." It seems clear that the mere fact that the owner of the building leased to different tenants did not form the basis for his liability for failure to repair the roof of first floor extending beyond the rest of the building; but the fact that the owner had constructed on the roof of this portion of the building a walk for use by the tenants of the second and third floors of the front portion of the building to secure supplies from the rear, indicates that this part of the leased premises remained under the dominion and control of the defendant.

Likewise, in the case of Roberts v. Lipschitz and Peters, 30 Pa. Dist. Rep. 484, the limitation is recognized by the statement in the syllabus, that the mere fact that a building is leased to different tenants does not of itself make the landlords liable for an injury which occurred in that portion of the premises which was leased to a tenant.

The facts in the instant case do not show a situation where the defect is in a portion of a roof common to the whole building and the roof protects all parts of the building occupied by different tenants. Here the roof was immediately over the room at a separate height from the main roof and formed the ceiling of the room occupied by the plaintiff's master as tenant. Not only so, but the portion out of repair was a skylight designed alone to furnish light to the one tenant, Sherman Linderman Company, and its employees. It happened that the window was in the roof in place of being on the side of the building and was therefore called a skylight. Would anyone contend, under the other facts present here, that if this opening had been on the side, the landlord would have been liable in an action in tort for damages caused by a failure to make repairs to the window? Certainly there would be the same access for making repairs in each case. The room occupied by this plaintiff was in the exclusive control of her master, the landlord did not have access thereto, and the skylight was a part of the room. To interfere with the skylight was to interfere with the tenant's occupancy.

The fact that the defendant maintained a down spout or spouts to conduct the rain falling, on the roof of the higher parts of the building surrounding the light well, and discharging it along the side roof over the workroom before referred to, of which the skylight formed a part, is not such a retention or assumption of control and occupancy of the skylight itself as to impose any obligation on the defendant. The maintenance of the spout or spouts, or the drainage of the water, in no manner contributed to the accident. Hence the limitation to the general rule is entirely applicable to the circumstances of this case.

"It is equally well-established that where the tenant has no redress against the landlord, those on the premises in the tenant's right are likewise barred." Harris v. Lewistown TrustCo., 326 Pa. 145, 191 A. 34, at p. 150. In that case it was decided that an employee is on the premises in the tenant's right, the court asserting, "The ground of this principle is that since members of the family, employee, guests and other invitees of the tenant are brought on the premises through the tenant's initiative, they must look to him and not to the owner, who is out of possession, for their protection."

Since, therefore, there was no duty on the part of defendant to repair the skylight for the protection of plaintiff, there is no need for further consideration of the proximate cause of the accident, nor for the question of plaintiff's contributory negligence.

From the foregoing, it appears that there was no right of action in plaintiff, under the circumstances, against the defendant, and in my opinion, judgment should have been reversed.

PARKER, J., concurs in this dissent.