Monti v. Leand

• Decision Date: 16 July 1971
• Docket Number: Nos. 1242-A,s. 1242-A
• Citation: 108 R.I. 718,279 A.2d 743
• Parties: Pasquale MONTI v. Milton LEAND. Carolyn Lucy MONTI, p.a. v. Milton LEAND. ppeal, 1243-Appeal.
• Court: Rhode Island Supreme Court

Page 743

279 A.2d 743

108 R.I. 718

Pasquale MONTI v. Milton LEAND.

Carolyn Lucy MONTI, p.a. v. Milton LEAND.

Nos. 1242-Appeal, 1243-Appeal.

Supreme Court of Rhode Island.

July 16, 1971.

Robert B. Corris, Providence, for plaintiffs.

Bruce G. Tucker, Providence, for defendant.

OPINION

JOSLIN, Justice.

These are two actions of trespass on the case for negligence. ¹ One was brought by Carolyn L. Monti, then but not now a minor, who sued by her father and next friend to recover damages sustained when she was severely cut while lowering a window in the premises leased by her employer from the defendant. The other was brought by Carolyn's father who sued in his own name to recover for the expenses incurred to effect a cure of his daughter's injury. In each case the defendant's motion for summary judgment was granted and each plaintiff appealed. While we discuss only the daughter's case, what we say with respect to it applies equally to the father's case.

It appears from the pleadings, affidavits and answers to interrogatories that plaintiff was employed by Nohel Manufacturing Corp. which leased from defendant certain premises located in the City of Providence. On June 18, 1963, at the end of the work day, she undertook the obligation of closing some of the windows in her employer's plant. Preparatory to lowering one of them, it was necessary to remove a metal screen which fitted between the sill and the bottom of the raised window. Just as she removed the screen 'the window suddenly started to slam down.' While she does not 'remember exactly what happened then,' her affidavit states that she 'either instinctively grabbed for the window or when the window slammed, the glass broke.' In any event her right wrist and forearm were severely cut by the broken glass, and it was to recover for those injuries that this suit was commenced.

The material facts set out in the affidavits and answers to interrogatories are not in controversy, and the only question for us, therefore, is whether the controlling law, when applied to those facts construed in the light most favorable to plaintiff, justified granting defendant's motion for summary judgment.

At the outset, plaintiff, at least by implication, recognized that the controlling law when she was injured denied a tenant and those on the leased premises with the tenant's permission the right to recover damages either in contract or in tort for personal injuries suffered as a consequence of a landlord's failure to perform under a covenant to repair. Davis v. Smith, 26 R.I. 129, 58 A. 630. ²

In an attempt to circumvent the Davis case, plaintiff relies upon the 'reserved control' doctrine. That doctrine, as set forth in 2 Restatement Torts, § 361, was accepted as the law of this state in Allen v. William H. Hall Free Library, 68 R.I. 80, 26 A.2d 751. It reads:

'A possessor of land, who leases a part thereof and retains in his own control any other part which is necessary to the safe use of the leased part, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care (a) could have discovered the condition and the risk involved therein, and (b) could have made the condition safe.' ³

In an effort to show that defendant retained control of the window in question within the contemplation of the Restatement Rule, plaintiff points to two clauses of her employer's lease. One requires defendant to keep the exterior of the leased premises in good repair, and the other imposes upon plaintiff's employer the obligation '* * * to keep the interior of said premises in as good repair as they now are, * * * including the setting of glass in windows and doors * * * provided said glass is broken by Lessee or its servants * * *.' This division between landlord and tenant of the obligation to make repairs, plaintiff contends, clearly demonstrates that the parties to the lease intended that the windows, including the one which 'slammed down,' be considered a part of the exterior of the leased premises and therefore subject to defendant's covenant to repair.

Continuing with her argument, plaintiff then uses defendant's covenant to repair as a springboard for her conclusion that defendant had reserved control of the window and that his reservation of control impliedly carried with it responsibility for the injuries which she sustained as a consequence of his failure to keep the window in a reasonably safe condition.

Obviously plaintiff's argument was developed to circumvent the strictures of the rule of Davis v. Smith, supra. Professor Prosser, while acknowledging the ingenuity of such an argument, nonetheless rejects plaintiff's theory that control for the purposes of making repairs is sufficient to sustain tort...