Campbell v. Elsie S. Holding Co.

• Decision Date: 11 July 1929
• Citation: 251 N.Y. 446,167 N.E. 582
• Parties: CAMPBELL v. ELSIE S. HOLDING CO., Inc., et al.
• Court: New York Court of Appeals Court of Appeals

251 N.Y. 446

167 N.E. 582

CAMPBELL

v.ELSIE S. HOLDING CO., Inc., et al.

Court of Appeals of New York.

July 11, 1929.

Action by Mary Campbell, as administratrix of the goods, chattels, and credits of John Murphy, deceased, against the Elsie S. Holding Company, Inc., impleaded with Alamo Warehouses, Inc. From a judgment of the Appellate Division, First Department (225 App. Div. 857, 233 N. Y. S. 715), affirming a judgment of the Trial Term, entered on verdict of jury in favor of plaintiff, the Elsie S. Holding Company appeals.

Reversed, and new trial granted.

Appeal from Supreme Court, Appellate Division, First department.

Clarence S. Zipp and E. C. Sherwood, both of New York City, for appellant.

Francis Dean and Edward J. Elliott, both of New York City, for respondent.

KELLOGG, J.

The Elsie S. Holding Company, Inc., was the owner and lessor of a building; the Alamo Warehouses, Inc., was the lessee and occupant. It had been stipulated that the building was ‘to be used and occupied as a warehouse’ and that all repairs thereto were to be made by the tenant. The building was equipped with a freight elevator, which was operated in an open shaft immediately adjoining the front wall of the building. This wall, which was wide at the base, narrowed as it rose, so that the inner face of the wall inclined outward. So much out of plumb was the wall that the elevator platform, which almost touched the wall when at the first floor, raised to the the eighth floor, was 18 inches distant therefrom. The elevator had side walls, but was entirely open front and back. Consequently, when the elevator was at the eighth floor, between the wall of the building and the edge of the platform there was an uncovered opening 18 inches wide, access to which from the platform was unobstructed by any rail or other guarding obstacle. John Murphy, an employee of the lessee Alamo Warehouses, Inc., was at work on the eighth floor unloading a truck, which he had wheeled upon the elevator platform. In some unexplained manner he fell through the opening and was killed. This action was thereupon brought by the administratrix of his estate against the lessor, Elsie S. Holding Co., Inc., to recover damages for his death.

It is a familiar rule that the lessor of a building is not liable for injuries to the lessee, or others upon the premises in the right of the lessee, resulting from a structural defect existing when the lessee took possession. Jaffe v. Harteau, 56 N. Y. 398, 15 Am. Rep. 438;Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310, 66 N. E. 968,61 L. R. A. 829;Junkermann v. Tilyou Realty Co., 213 N. Y. 404, 108 N. E. 190, L. R. A. 1915F, 700;Widmar v. Healey, 247 N. Y. 94, 159 N. E. 874; Restatement of the Law of Torts, Tentative Draft, No. 4, § 226. The rule does not apply if the lessor rents the premises for a public use to which he knows they are unsuited. Swords v. Edgar, 59 N. Y. 28, 17 Am. Rep. 295;Edwards v. New York & H. R. Co., 98 N. Y. 245, 50 Am. Rep. 659;Timlin v. Standard Oil Co., 126 N. Y. 514, 27 N. E. 786,22 Am. St. Rep. 845;Lusk v. Peck, 132 App. Div. 426, 116 N. Y. S. 1051; Id., 199 N. Y. 546, 93 N. E. 377; Junkermann v. Tilyou Realty Co., supra. Thus the lessor is liable for accidents, and injuries resulting, if, knowing its unsuitability therefor, he leases for use in serving the public a defective dock (Swords v. Edgar, supra); a defective grand stand in an athletic park (Lusk v. Peck, supra);a defective toboggan slide (Barrett v. Lake Ontario Beach Imp. Co. supra); a garage with a defective elevator (Warner v. Lucey, 207 App. Div. 241, 201 N. Y. S. 658; Id., 238 N. Y. 638, 144 N. E. 924); an amusement park with a defective board walk (Junkermann v. Tilyou Realty Co., supra).

This court has stated the exception to the rule of nonliability as follows: ‘If the premises are rented for a public use for which he [the lessor] knows that they are unfit and dangerous, he is guilty of negligence, and may become responsible to persons suffering injury while rightfully using them.’ Barrett v. Lake Ontario Beach Imp. Co., supra. The American Law Institute, avoiding a possible ambiguity resting in the word ‘public,’ has stated the exception as follows: ‘A lessor who leases land for a purpose which involves the admission of a large number of persons as patrons of his lessee, is subject to liability for bodily harm caused to them by an artificial condition existing when the lessee took possession, if...