Bernstein v. EMS CORPORATION, 191

• Citation: 174 F.2d 880
• Decision Date: 24 May 1949
• Docket Number: No. 191,Docket 21247.,191
• Parties: BERNSTEIN v. EMS CORPORATION et al.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

174 F.2d 880 (1949)

BERNSTEIN v. EMS CORPORATION et al.

No. 191, Docket 21247.

United States Court of Appeals Second Circuit.

May 24, 1949.

Leo F. Potts, New York City (I. Maurice Wormser, Charles H. Lane and Sidney J. Loeb, New York City, of counsel), for appellant.

Hatch, Wolfe & Nash, New York City (Barent Ten Eyck and Benjamin H. Siff, New York City, of counsel), for appellee.

Before L. HAND, Chief Judge, and SWAN and FRANK, Circuit Judges.

SWAN, Circuit Judge.

This is a negligence action to recover for personal injuries sustained by the plaintiff through the fall of an electric lighting fixture while he was a business visitor in the store of Olian & Cantor. They were in possession of the store under a lease from Ems Corp., owner of the building in part of which the store was located. The lighting fixture was attached to a ceiling beam. When Mr. Olian pulled the switch cord to turn on the light, the entire fixture fell and part of it, together with pieces of plaster from the ceiling, struck the plaintiff, causing the injuries complained of. His action was brought against both the tenants and the landlord. At the conclusion of the evidence the landlord moved for dismissal of the complaint on the ground that the evidence was insufficient to establish any liability on its part. The motion was denied and the jury returned a verdict exonerating the tenants and awarding the plaintiff damages of $102,500 against the landlord. The landlord then moved to set aside the verdict and dismiss the complaint or to grant a new trial. This motion the trial judge denied in an opinion reported as Bernstein v. Olian, D.C., 77 F.Supp. 672. From the judgment entered on the verdict Ems Corp. has appealed.¹

There is no dispute as to the facts. The appellant acquired ownership of the building in November 1942. At that time Olian & Cantor were in possession of the store under a lease made in 1938 with the former owner of the building. In 1943 they executed a lease with the appellant which was in effect when the accident occurred on July 2, 1945. The fixture which fell consisted of a metal base-plate attached to the concrete ceiling beam by screws, an ornamental canopy concealing the base-plate, and a depending chain which carried at its lower end a glass globe and the electric light bulb. The base-plate had been installed before the tenants took possession under their 1938 lease. During their occupancy under that lease the ornamental canopy and globe were purchased by them and installed by the seller. This increased the weight of the parts supported by the base-plate. The defect which caused the fixture to fall resulted from the way in which the base-plate was secured to the ceiling beam. The base-plate had four openings for the insertion of screws but only two screws were used. It was established by expert testimony that these screws were not long enough, after passing through the base-plate and the plaster above it, to penetrate into the concrete of the ceiling beam a sufficient distance to provide a safe attachment. Although the fixture had existed for several years before the accident occurred, the jury could properly find that it created a dangerous condition in the store premises.

A person in possession of real estate is liable for injuries caused to a business visitor by a dangerous condition existing in the premises if he knows of the danger or by the exercise of reasonable care could discover it, and fails to warn the business visitor. A.L.I. Restatement of Torts, § 343. When the premises are occupied by a tenant under a lease, the duty of discovering the danger and warning the business visitor generally falls upon the tenant, and a similar duty is not imposed upon the landlord who is ignorant of the danger merely because the lease requires him to make repairs. Cullings v. Goetz, 256 N.Y. 287, 290, 176 N.E. 397. That decision, however, 256 N.Y. at page 294, 176 N.E. at page 399, expressly excluded from its ruling the case "where a part...