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JAMES J. PALERMO v. RAYMOND NAILS AND PAUL F. CASTROGIOVANNI (10/26/84)

filed: October 26, 1984.

JAMES J. PALERMO, JR., A MINOR BY JAMES J. PALERMO, HIS NATURAL GUARDIAN, AND JAMES J. PALERMO AND MARY J. PALERMO, INDIVIDUALLY
v.
RAYMOND NAILS AND PAUL F. CASTROGIOVANNI, ADMINISTRATOR OF THE ESTATE OF MARY D. CASTROGIOVANNI, DECEASED. APPEAL OF PAUL F. CASTROGIOVANNI ADMINISTRATOR OF THE ESTATE OF MARY D. CASTROGIOVANNI, DECEASED



No. 02350 Philadelphia 1982, APPEAL FROM THE JUDGMENT ENTERED JULY 29, 1982 IN THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY, CIVIL NO. 187 MARCH TERM, 1979. As Amended November 13, 1984.

COUNSEL

James M. Scanlon, Scranton, for appellant.

Lawrence A. Durkin, Scranton, for appellees.

Cirillo, Beck and Cercone, JJ.

Author: Cirillo

[ 334 Pa. Super. Page 546]

This appeal presents for the first time in Pennsylvania, the question of whether a landlord out of possession owes a duty of care to his tenant's invitees to prevent injury from a vicious animal kept by the tenant on the leased premises. Public policy requires a landlord to exercise an ordinary duty of care towards his tenant's invitees when the landlord has actual knowledge of the dangerous animal's vicious propensities and where the landlord maintains possession or control of the property.

This appeal arises from a personal injury suit commenced by appellee James J. Palermo, Sr., on behalf of his minor child, appellee James J. Palermo, Jr., against the appellant Paul F. Castrogiovanni, administrator of the estate of Mary Castrogiovanni, deceased, and Raymond Nails.*fn1

On August 22, 1978, seven year old James J. Palermo, Jr. was attacked and bitten by a dog owned by the defendant, Raymond Nails. The attack occurred on premises owned by the deceased, Mary Castrogiovanni, who leased the property to the defendant Nails. At trial, James Jr. testified that on the day of the incident, he was playing in the backyard of his home, which was in close proximity to the defendant Nails' leased premises. The child saw a dog tied to a post in the backyard of Nails' property. The dog had entangled itself around a post and was choking. The child entered the Nails backyard to untangle the dog and free him from this predicament. When freed, the dog attacked the child and bit him several times on the head and face, causing permanent injury.

The jury returned a verdict for the appellees, finding that the defendant, Raymond Nails, was 50% negligent, the

[ 334 Pa. Super. Page 547]

    appellant, estate of Mary Castrogiovanni, was 30% negligent, and the minor appellee was 20% negligent. Appellant filed motions for a New Trial and Judgment N.O.V., which the trial judge dismissed. This appeal followed.

Appellant's prime contention is that under Pennsylvania law, a landlord out of possession has no duty of care with respect to a dangerous animal owned by the tenant.

Generally, a landlord out of possession is not responsible for attacks by animals kept by his tenant on leased premises where the tenant has exclusive control over such premises. Collins v. Otto, 149 Colo. 489, 369 P.2d 564 (1982); Denagy v. Doscher, 40 Misc.2d 643, 243 N.Y.S.2d 575 (1963); cf. Juarbe v. City of Philadelphia, 288 Pa. Super. 330, 431 A.2d 1073 (1981). However, a landlord out of possession may be held liable for injuries by animals owned and maintained by his tenant when the landlord has knowledge of the presence of the dangerous animal and where he has the right to control or remove the animal by retaking ...


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