Perlman v. Kraemer
| Decision Date | 29 July 1958 |
| Docket Number | No. 57-410,57-410 |
| Citation | 104 So.2d 609 |
| Parties | A. A. PERLMAN, Appellant, v. Harry KRAEMER, Jack August, and Charles Beatty, Appellees. |
| Court | Florida District Court of Appeals |
Joseph Rosenkrantz, Miami Beach, for appellant.
Fowler, White, Gillen, Yancey & Humkey, and Kenneth B. Sherouse, Jr., Miami, for appellees.
The appeal is from a summary final judgment entered by the court below, suasponte, against the appellant after a pretrial conference.
The appellant brought suit for damages allegedly resulting from personal injuries occasioned by plaster falling from the ceiling in premises leased by the appellant from the appellees. A business establishment was operated by the appellant upon the leased premises. The appellant charges the appellee-landlords with negligence 'in failing to properly maintain the said toilet facilities and plumbing appurtenances in parts of the building premises not leased to the plaintiff and in control of the landlord'; that by reason of such alleged negligence, water escaped from the defective plumbing, leaked into the area between the ceiling in the appellant's store premises and the floor above and thereby caused the plaster to fall. Paragraph 6 of the lease attached to the appellees' answer provided in substance that the lessee (appellant) covenanted to keep in good condition the interior of the premises including the plumbing, doors, etc. Paragraph 20 of the lease also provides that the lessor will keep the exterior of the building in good repair but that the lessee should give the lessor seven days' written notice of needed repairs. It is not contended that written notice was given by the appellant to the appellees of the defective plumbing but, on the contrary, that verbal notice was given two or three months prior to the alleged injury. The appellees interposed the defense of assumption of risk in addition to the denials of the allegations of negligence.
First, the appellant contends that the appellees did not interpose the defense of assumption of risk but instead the court interposed such defense for them. The record in this case disputes the appellant's contention, and we conclude that such defense was raised by the appellees' answer.
The appellant contends, secondly, that the court was in error in concluding as a matter of law that the appellant assumed the risk and therefore could not recover.
The appellant sought by his complaint to come within the rule of law that predicates liability upon the fact of control. The appellant charged the appellee-landlords with failure to repair defective plumbing in premises under their control. See Moore v. Lanier, 52 Fla. 353, 42 So. 462 and Brooks v. Peters, 157 Fla. 141, 25 So.2d 205, 207. However, an analysis of the appellant's statement...
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Rea v. Leadership Housing, Inc., 74--612
...by driving her bicycle up the driveway near the two holes. See Conroy v. Briley, Fla.App.1966, 191 So.2d 601; but see Perlman v. Kraemer, Fla.App.1958, 104 So.2d 609. Moreover, since the accident occurred along an area (driveway) which apparently was the usual (and only) means of egress and......
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Weedman v. Sunland Roller Rink, Inc., 75--211
...risk is not ordinarily a question of law for determination by the court. See Bartholf v. Baker, Fla.1954, 71 So.2d 480; Perlman v. Kraemer, Fla.App.1958, 104 So.2d 609, and Clark v. Ocala Gas Company, Fla.App.1960, 123 So.2d 391. There are instances where the danger is so obvious and the su......
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McDonald v. Wingard
...including Zubowicz v. Warnock, Fla.App.2nd 1963, 149 So.2d 890, Diaz v. Hudson, Fla.App.1st 1966, 191 So.2d 277 and Perlman v. Kraemer, Fla.App.3rd 1958, 104 So.2d 609, but we do not find those cases helpful in resolving the issue here under In the case sub judice the agreed facts support t......
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Alzugaray v. Markowitz
...in the ceiling of the bathroom and continued to reside in the apartment, that under the rule announced by this court in Perlman v. Kraemer, Fla.App.1958, 104 So.2d 609, she was precluded from a We point out at this juncture that the facts in the Perlman case and those in the case at bar are......