Gilpin v. Abraham
Decision Date | 14 June 1963 |
Docket Number | Civ. A. No. 32308. |
Citation | 218 F. Supp. 414 |
Parties | Inez GILPIN v. Morris ABRAHAM and Jennie M. Sherr, also known as Jean Mellon and James Walls v. Lester HARRIS and Barbara Harris. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Michael Shekmar, Philadelphia, Pa., for James Walls, defendant and third-party plaintiff.
Richman & Richman, by Philip Richman, Philadelphia, Pa., for third-party defendants.
This motion to dismiss by the third-party defendants presents a question of law for our determination concerning the validity of an exculpatory clause in a lease1 relieving the lessor from liability by reason of injury to any individual in the leased premises resulting from the lessor's negligence. The Philadelphia Housing Code2 is pertinent to a consideration of this question.
The plaintiff, while a guest of the third-party defendants, suffered injuries when she fell from a platform attached to an outside fire tower which collapsed because of deteriorated metal supports. She instituted suit against the former and present owners of the building who joined Mr. and Mrs. Harris, the lessees, as third-party defendants.
The purpose of the Philadelphia Housing Code is "to protect the public, health, safety and welfare * * *"3 Tenants and their guests being members of the public are entitled to the protection of the Code. Such an ordinance is intended to place the responsibility for building safety on the landlords to prevent the type of mishap that occurred in this case.
Defendant relies on the exculpatory clause as providing the ground for his third-party indemnity action against the lessees. It is indeed settled law that such a protective clause is valid and enforceable if it does not contravene any policy of the law; that is, if it is not a matter of interest to the public or the state but merely an agreement between persons concerning their private affairs. Bryans v. Gallagher, 407 Pa. 142, 178 A.2d 766 (1962); Cannon v. Bresch, 307 Pa. 31, 160 A. 595 (1932); and Manius v. Housing Authority, 350 Pa. 512, 39 A.2d 614 (1944).
Boyd v. Smith, 372 Pa. 306, 310, 94 A.2d 44, 46 (1953).
Also see Harris v. Greenberg, 17 Pa. Dist. & Co.R.2d 166 (1958); and Maglin v. Weinberg, 21 Pa.Dist. & Co.R.2d 630 (1959).
In Boyd v. Smith, supra, the Supreme Court distinguished those cases cited by the third-party plaintiff which uphold exculpatory clauses in a lease. Just as in Boyd v. Smith, supra, the clause in the lease before us is...
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...333 F.2d 426, 428-29 (7th Cir.1964); Mohawk Drilling Co. v. McCullough Tool Co., 271 F.2d 627, 633 (10th Cir.1959); Gilpin v. Abraham, 218 F.Supp. 414, 415 (E.D.Pa.1963). Section 496B of the Restatement (Second) of Torts states, "A plaintiff who by contract or otherwise expressly agrees to ......
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ELLWOOD CONSOLIDATED WATER COMPANY v. Johnson
...lease here invoked * * * is violative of that policy and is therefore legally inoperative and void. 94 A.2d at 46. 2 See Gilpin v. Abraham, 218 F.Supp. 414 (E.D.Pa.1963), where the Boyd doctrine was followed in a situation where a landlord sought indemnification from his tenant for a loss o......
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