Appeal from judgment of Court of Common Pleas of Clearfield County, Nov. T., 1961, No. 250, in case of James L. Smith v. M. P. W. Realty Company, Inc.
A. Unkovic, with him Robert V. Maine, Edwin S. Fennell, Jr., and Maine and Fennell, and Meyer, Unkovic & Scott, for appellant.
Joseph J. Lee, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Musmanno and Mr. Justice Roberts dissent.
In this personal injury action, the trial court entered a compulsory non-suit which the court en banc refused to remove. The plaintiff appeals.
The defendant is the owner of a building leased to several commercial enterprises. Since 1955 the plaintiff has been the lessee of part of the building which he uses for the operation of a credit bureau. This leasehold originally consisted of four rooms, but on November 1, 1959, an adjoining room was added thereto and plaintiff entered into occupancy thereof during the second or third week of December. The entire building is heated by a central steam-heating system controlled and operated by the defendant. The steam is generated in a boiler in the basement and conveyed by pipes to radiators located throughout the building.
On December 30, 1959, one of plaintiff's employees informed him that the room recently added to the leasehold was cold. He entered the room and found that a radiator located therein and the air vent inserted in the side thereof were cold to the touch. He noticed that the particular air vent was in a horizontal position with the floor, rather than in its proper vertical position.*fn1 He attempted unsuccessfully to move the vent a quarter turn with his left hand. He then applied "extra pressure" with both hands and suddenly the vent fell from its socket and steam and hot water spewed from the hole in the radiator seriously burning the plaintiff's hands.
The court below ruled: (1) that the plaintiff failed to establish a prima facie case of negligence on the part of the defendant-landlord; and, (2) that plaintiff
was guilty of contributory negligence, as a matter of law, in attempting to correct the position of the vent personally, particularly without first closing the steam control valve located on the opposite side of the radiator, as well as in applying extra force to turn the vent.
The negligence asserted was based upon the claim, that the air vent involved was in such a state of latent disrepair that it constituted a dangerous condition which the landlord in the exercise of reasonable care should have discovered and remedied before injury resulted.
As a general rule, a landlord does not warrant that the leased premises are in a tenantable condition. However, where the landlord retains control of a part of the leased premises, which is necessary to the safe use of the leased portion, he is liable to the lessee and others lawfully on the premises for physical harm caused by a dangerous condition existing upon that part over which he retains control, if by the exercise of reasonable care he could have discovered the condition and the risk involved, and made the condition safe. See, Restatement 2d, Torts, § 361 (1965). See also, Wolk v. Pittsburgh Hotels Co., 284 Pa. 545, 131 A. 537 (1925), and Pratt v. Scott Enterprises, Inc., 421 Pa. 46, 218 A.2d 795 (1966). The above rule has been applied to plumbing and heating facilities over which the landlord retains control. ...