to the dangers or invites or permits his licensees to encounter them. * * *'
Viewing the facts in the light most favorable to the plaintiffs (i.e. that repairs were made to the back porch in June 1955, and that these repairs were negligently made) there still exists no legal basis upon which liability in this case can rest for it is a conceded and undisputed material fact that the lessee Soble had notice and knowledge of the fact that repairs were made in June 1955, and that a so-called dangerous condition existed in the back porch prior to June 29, 1957, and as early as May 28, 1957. For this reason, that the lessee had knowledge in May 1957, it is apparent that the conflict in positions concerning whether or not repairs were made in June 1955 is not a genuine issue as to any material fact. The material facts of the case at bar fall within the amplification of Section 362 as spelled out in Comment C. This knowledge on the part of the lessee exculpates the landlord from liability and thus obviates the further consideration of the question of the applicability of the rule imposing liability for negligent repairs to the facts of this case where the injury occurred some two years after the repairs were alleged to be made.
With regard to the second theory advanced by the plaintiffs, this is clearly ruled and disposed of by the principles enunciated in Harris v. Lewistown Trust Co., 326 Pa. 145, 191 A. 34, 35, 110 A.L.R. 749, and supports the conclusion that there is no legal basis upon which liability can be asserted against the defendants. There, as in this case, a dangerous condition was alleged to have existed in the leased premises, and there as here, a promise to repair the allegedly defective condition was made by the landlord which was never honored, and there as here, injuries were sustained, but there to the wife of the lessee as a result of the collapse of a cellar stairway. In the Harris case, as here, the allegedly defective condition was known both to the lessor and lessee prior to the accident. In that case, the Supreme Court of Pennsylvania affirmed the entry of judgment non obstante veredicto entered against the wife by the lower court.
The court said in part:
'The general rule in this country, and also in England, is that an agreement to repair does not impose upon the owner a liability in tort at the suit of the tenant or others lawfully on the land in the right of the tenant: (Citing cases)
'Fundamentally, this view is based upon the conclusion that liability in tort should follow as a legal incident of occupation and control: Restatement of the Law of Torts, § 357, Comment (a). By the great weight of authority, occupation and control are not reserved through an agreement by the owner to repair: (Citing cases) As was said by the then Chief Judge Cardozo in the Cullings case ( Cullings v. Goetz, 256 N.Y. 287, 176 N.E. 397), 'The tenant and no one else may keep visitors away till the danger is abated, or adapt the warning to the need. The landlord has at most a privilege to enter for the doing of the work, and at times not even that if the occupant protests. 'The power of control necessary to raise the duty * * * implies something more than the right or liability to repair the premises. It implies the power and the right to admit people to the premises and to exclude people from them.' (Cavalier v. Pope, (1906) A.C. 433).' * * *'
And continuing, the court said:
'* * * We have held repeatedly that a tenant takes the property as he finds it, with all existing defects which he knows or can ascertain by reasonable inspection. This is so even though the premises are in a condition called ruinous. Robbins v. Jones, 15 C.B.(N.S.) 221, 240. Where the entire possession and enjoyment of property is transferred by landlord to tenant, the rule of caveat emptor applies. As was said by Mr. Justice Sharswood in Moore v. Weber, 71 Pa. 429. 'The lessee's eyes are his bargain. He is bound to examine the premises he rents, and secure himself by covenants, to repair and rebuild.'
'A well-recognized exception to this rule exists where the landlord gives the tenant possession of land containing, to the landlord's knowledge, dangerous hidden defects unknown to the tenant and which by reasonable inspection he cannot discover. In such a case, the landlord is guilty of active wrongdoing, because he commits an act which almost inevitably draws the tenant into a hidden trap. Restatement, Torts, § 358; See Carson v. Godley, 26 Pa. 111; Levin v. Philadelphia, 277 Pa. 560, 121 A. 331; Cowen v. Sunderland, 145 Mass. 363, 14 N.E. 117; 1 Tiffany, Landlord and Tenant (1910) 563, 564. This exception is inapplicable here. There was no hidden defect, the tenant had full knowledge of the condition of the stairs, and freely admitted it. The case thus falls without the exception, and within the general rule, and it is clear that the tenant, as plaintiff suing for his own injuries in trespass, could not recover.
'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. So, in Pennsylvania, it has been held a member of the tenant's family ( Robinson v. Heverin, 50 Pa.Super. 546) and a sublessee ( Levin v. Philadelphia, supra) has no greater rights against the landlord than had the tenant. See, also, Moore v. Logan Iron & Steel Co., 3 Sad. 143, 7 A. 198. A similar result has been repeatedly reached elsewhere. The ground of this principle is that since members of the family, employees, 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.'
This being a diversity case, this court is bound by the Harris v. Lewistown Trust Co. decision. Defendants are entitled to judgment.
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