Dunson v. Friedlander Realty
| Decision Date | 06 April 1979 |
| Citation | 369 So.2d 792 |
| Parties | Fredrick William DUNSON, Individually and as Father and next friend of Tamika L. Dunson, a Minor v. FRIEDLANDER REALTY, a corporation. Fredrick William DUNSON, Individually and as Father and next friend of Fredricka Dunson, a Minor v. FRIEDLANDER REALTY, a corporation. 77-744, 77-745. |
| Court | Alabama Supreme Court |
Richard F. Pate of Diamond, Lattof & Gardner, Mobile, for appellants.
Leon G. Duke of Sintz, Pike, Campbell & Duke, Mobile, for appellee.
The two cases involved in this appeal were consolidated by stipulation because they involve identical injuries and parties. The cases were filed by Fredrick W. Dunson, individually and as father and next friend of his two minor daughters, against Friedlander Realty, a corporation, fictitious individuals designated John Doe I through John Doe V and fictitious parties designated X Company and Y Company.
Each complaint contains five separate claims for relief against the various defendants. In all counts, plaintiffs, while tenants of rental property located at 815 South Broad Street, Mobile, Alabama, sustained injuries when they consumed lead-based paint chips.
Count One alleges a landlord-tenant relationship between plaintiffs and defendants, Friedlander Realty, John Doe I-III, and alleges that these defendants were liable to the plaintiffs for injuries resulting to them from a hazardous, unsafe and dangerous defect in the premises, namely lead-based paint, which defect was known to these defendants at the time of the leasing and which they concealed from the plaintiffs.
Count Two alleges that the same defendants were aware of the defect; and they entered into a covenant to repair and remedy this condition but breached the agreement causing injuries to the minor children.
Count Three alleges that the same defendants knew of the presence of the lead-based paint and voluntarily undertook, through their agents or servants, to repair or correct the defect by employing John Doe IV and V ". . . to scrape and paint said dwelling . . . and they negligently failed to remove the scrapings containing lead paint from the premises."
Count Four attempts to state a claim against fictitious parties, X and Y Companies, for breach of warranties, express and implied. Such parties are alleged to be ". . . in the business of manufacturing, testing and/or selling paint . . . ." and that they warranted the paint purchase by defendants, John Doe IV and V, for painting the dwelling to be fit for ordinary purposes; that this warranty was breached because ". . . it failed to keep contact with certain paint on said dwelling that contained lead and further, that said paint failed to seal properly the paint on said dwelling that contained lead . . . ." and "Plaintiff and his minor daughter(s) relied upon the skill and judgment of the said Defendants to select and furnish a suitable paint to seal the lead paint on said dwelling and to stop the chipping or peeling of the lead paint from said dwelling . . . ."
Count Five simply incorporates the other four and seeks damages for medical expenses and loss of services of his minor children.
Both children are alleged to have lived in the house involved since their respective births, which means that the premises were rented by their father before the birth of either child.
Defendant Friedlander Realty filed a motion under ARCP 12(b)(6) to dismiss each of the complaints on the ground that it failed to state a claim against this defendant upon which relief can be granted. The trial court entered judgment in compliance with ARCP 54(b) and plaintiff appealed.
The only issue presented is whether the complaint states a claim upon which relief may be granted as to Friedlander Realty inasmuch as the judgment appealed from adjudicates only the claims asserted against it. Because that is so, we do not address the validity of the breach of warranty claim against the manufacturer or seller of the paint used to paint the dwelling.
We hold that Count One was properly dismissed. The general rule is that a landlord is not liable in tort for injuries suffered by a tenant, whether there be a covenant to repair or not unless the defect existed at the time of the letting and was known to him and which he concealed from the tenant. Bevis v. L & L Services, 360 So.2d 296 (Ala.1978); James & Sons, Inc. v. Breedlove, 347 So.2d 1330 (Ala.1977); Chambers v. Buettner, 295 Ala. 8, 321 So.2d 650 (1975); Hallock v. Smith, 207 Ala. 567, 93 So. 588 (1922). The allegations of Count One are that the existence of lead paint on the premises constituted a defect under the general rule; and that the defendant is liable because it concealed the defect. Restatement of the Law, Torts 2d, § 358 (1965), states the rule as follows:
Under the allegations of this count, should the landlord (even if it knew the lead-based paint was on the walls) have realized the risk involved or, to state the question in traditional tort language, was it reasonably foreseeable that the dangerous paint would chip and fall from the walls and be ingested by children? A landlord is expected to foresee only those dangers as would be foreseen by a reasonably prudent man under the same or similar circumstances. See W. Prosser, The Law of Torts, § 63, page 401 (4th ed. 1971); F. Harper & James, The Law of Torts, § 27.16, pages 1508-9 (1956).
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