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January 8, 1964

DAUPHIN REALTY COMPANY, Inc., Daniel V. Straff, Raymond Straff, Washington Hotel Garage, v. Joseph PRAGER and Pearl Prager

The opinion of the court was delivered by: WOOD

On January 14, 1958, the plaintiff, an elevator repairman, was seriously injured when an outside concrete platform on which he was standing collapsed at 2240 Germantown Avenue, Philadelphia, Pennsylvania. This premises, the Washington Hotel Garage, was operated by the defendants Daniel V. Straff and Raymond Straff (Straffs) pursuant to a sublease dated May 1, 1953, entered into with Joseph Prager and Pearl Prager (Pragers) who in turn had leased the premises from the Dauphin Realty Company (Dauphin) under a lease dated the same day -- May 1, 1953. The original lease, in a rider agreement at paragraph 7, acknowledged the sublease to the Straffs who had entered into possession of the garage on April 25, 1953.

The lease and sublease provided that all repairs to the premises would be made by the tenant with the exception of the roof which Dauphin specifically contracted to maintain and repair. The Straffs had paid their rent to the Pragers until October or November, 1957, when judgment was entered on the lease against the Pragers by Dauphin and an attachment issued against the Straffs directing them to pay all further rents to Dauphin.

 Plaintiff originally sued Dauphin and the Straffs and Dauphin joined the Pragers as third-party defendants pursuant to an indemnity clause in the lease between Dauphin and the Pragers whereby the Pragers assumed responsibility for all injuries occurring to any person on the premises regardless of the negligence of the lessor.

 Dauphin asserts that there was no evidence upon which the jury could find that any defect or dangerous condition existed on the premises prior to May 1, 1953 when the landlord, Dauphin, gave up possession under the lease. And further, Dauphin claims that under the law of Pennsylvania any painting by the landlord of the metal supports of this balcony did not constitute repairs. Also, that the defect was discoverable by a reasonable inspection by the Straffs at any time prior to the accident, and finally, that the Court erroneously instructed the jury regarding Pragers' obligations to Dauphin under the lease.

 The tenant's (Straffs) liability in this matter is unquestioned and it is the landlord's (Dauphin) responsibility which is in issue along with its rights under the lease for indemnity from the Pragers.

 The platform in question was situated on a 45 degree angle in the corner of the building and was contiguous to an inside fire tower which was a means of ingress and egress from the third floor to the roof where the elevator controls were located in a penthouse. The platform was supported by an 'L' shaped six-inch angle iron, the vertical leg of which was attached to the wall and covered by concrete and a horizontal leg which was visible and supported the underside of the platform. Also, two outside hand rails ran between the two doorways of the fire tower.

 On the date in question the plaintiff had gone to the garage to service the elevator in the building. He went to the third floor and opened the fire tower door and stepped out onto the platform which immediately collapsed and hurtled him to the second floor below where he was found 10 to 15 minutes later by Daniel V. Straff.

 The plaintiff being a business visitor to the premises was entitled to be warned of the dangerous condition which existed on this platform. In Greco v. 7-Up Bottling Co. of Pgh., et al., 401 Pa. 434, 446, 165 A.2d 5, 10 (1960), the Supreme Court of Pennsylvania held:

 '* * * 'But the duty of reasonable care and diligence may in certain circumstances impose something more than a mere cursory observation. It is clear that landowners have a duty to correct or warn business visitors or invitees not only of defects which are obvious or observable but also those discoverable by a proper or reasonable inspection. Miller v. Hickey, supra, 368 Pa. 317, 325, 81 A.2d 910; Coradi v. Sterling Oil Company, supra, 378 Pa. 68, 70, 71, 105 A.2d 98; Philadelphia Ritz Carlton Co. v. Philadelphia, 282 Pa. 301, 304, 305, 127 A. 843. A latent defect by its very nature is not obvious; but the circumstances may be such as to lead a reasonable and prudent person to make an investigation. That which amounts to a reasonable inspection is a matter to be determined from the circumstances of each case." (Emphasis supplied)

 In the instant case there was testimony from S. A. Keast, a structural engineer, that the type of concrete used in the platform was a type utilized between 1913 and 1919 or even the 1890s. *fn1" This testimony indicated that this portion of the building was at least thirty-four years old when the lease was entered into in 1953. The platform was exposed to the elements and the flat part of the angle iron between the concrete slab and the wall was corroded the most. (N.T. 176) This was due to the fact that moisture and dirt had accumulated between the iron and the wall. (N.T. 176) Mr. Keast further testified that the corrosion in this area 'started sometime after it was painted if it was painted. Otherwise it would have started immediately.' (N.T. 175) This expert stated that this angle iron could have been easily inspected by means of a sharp instrument probing the area between the slab and the wall and such an inspection would have revealed the corrosion and should have been done every three or four years. (N.T. 175)

 As to the design of the platform, Mr. Keast stated that the design was a type used in the early days of construction, '* * * but we have found since that it is not a good type of construction. In other words, a combination of steel and concrete does not make a good combination where exposed to the weather. The reason for that is that the weather, the frost and so forth, gets in between the metal sometimes and the concrete and expansion and contraction and corrosion disintegrate it and causes the material to finally collapse.' (N.T. 173) The corrosion of the iron against the wall was sufficient after thiryt years to cause the platform to be dangerous (N.T. 182). This would have created a dangerous condition at the time the original lease was entered into in 1953. It was for the jury to decide whether Dauphin met the standard of reasonable care and diligence in inspecting this portion of the premises at the time of the leasing to Prager. *fn2" This is particularly true in view of the design of the structure and its exposure to the elements. Greco v. 7-Up Bottling Co. of Pgh., supra, 401 Pa. p. 445, 165 A.2d p. 10. Also, as has been stated, the Straffs were already in possession of the premises on April 25, 1953 (N.T. 80) some six days before the lease and sublease were entered into on May 1, 1953. The landlord Dauphin had reason to believe that the Pragers would make no inspection of the premises since they immediately sublet to the Straffs. Under these facts it was a jury question whether the landlord should have taken steps to uncover and correct this dangerous condition to prevent injury to a business visitor such as the plaintiff. Harris v. Lewistown Trust Company, 326 Pa. 145, 153, 191 A. 34, 110 A.L.R. 749 (1937).

 Dauphin argues that it was not in control of this platform since all repairs were to be made by the Pragers and Straff Brothers. There was testimony by Daniel V. Straff that Dauphin had sent maintenance men on occasion to paint the handrails and outer beam of the platform. (N.T. 81)

 In Greco v. 7-Up Bottling Co. of Pgh., et al., supra, 401 Pa. p. 443, 165 A.2d p. 9, the Supreme Court held that a landlord who under a second lease was not obligated to make repairs to any part of the structure, but had contracted with a third party to paint the exterior of the building assumed control of the exterior of the building and was obligated to warn any business visitor or ...

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