Pollack v. Gampel

• Decision Date: 27 July 1972
• Citation: 313 A.2d 73,163 Conn. 462
• Court: Connecticut Supreme Court
• Parties: Ida F. POLLACK (Irving Gerstman, Administrator, Substituted Plaintiff) v. Harry A. GAMPEL et al.

Page 73

313 A.2d 73

163 Conn. 462

Ida F. POLLACK (Irving Gerstman, Administrator, Substituted Plaintiff) v. Harry A. GAMPEL et al.

Supreme Court of Connecticut.

July 27, 1972.

James F. Kenny, Bridgeport, with whom, on the brief, was James P. White, Jr., Bridgeport, for appellants (named defendant, and others).

Lawrence P. Weisman, Bridgeport, with whom was Richard L. Albrecht, Bridgeport, for appellee (plaintiff).

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and MacDONALD, JJ.

RYAN, Associated Justice.

This action was brought by Ida F. Pollack seeking damages for personal injuries from the defendants Harry A. Gampel, Frank Beckerman and Monty Casden, doing business as G. B. C. Realty Company, a copartnership with a place of business in the city of Hartford, Mildred S. Higgins, Inc., and Mildred S. Higgins Rental Corporation, Connecticut corporations with offices in Bridgeport and New Haven. Casden was later dropped as a party defendant. The first two counts of the complaint sound in negligence and the third count is predicated on a breach of contract. A third-party complaint was brought by the defendants Gampel and Beckerman against Harmont Building Corporation, Norkin Plumbing Company, Inc., and G & N Mechanical Corporation. The disposition of the action against the third-party defendants was severed by the trial court pending the conclusion of the original action and we are not concerned with it in this appeal.

Following a trial to the jury a verdict was returned for the plaintiff to recover $65,000 from the defendants Gampel and Beckerman, doing business as G. B. C. Realty Company on the negligence counts. The jury found the issues for the defendant Mildred S. Higgins, Inc. ¹ Following the denial by the trial court of the defendants' motion to set aside the verdict and for judgment notwithstanding the verdict, the defendants have appealed from the judgment rendered thereon. The original plaintiff Ida F. Pollack died after the trial and her administrator was substituted as a party plaintiff. For clarity was shall refer to the deceased as the plaintiff.

In the complaint, the plaintiff alleged that on March 28, 1967, she suffered serious personal injuries including heart damage and burns on her feet as a result of a flood of hot water in her apartment, which was caused by defective bathroom plumbing. She occupied the apartment owned by the defendants Gampel and Backerman under a lease and re-rental contract dated August 17, 1966. The complaint alleged negligence on the part of the defendants in the construction and maintenance of the plumbing equipment and in their failure properly to inspect this equipment.

The defendants assign error in the refusal of the trial court to set aside the verdict on the ground that it was not supported by the evidence and in denying their motion for judgment notwithstanding the verdict. These rulings are tested by the evidence printed in the appendices to the briefs. Kirby v. Zlotnick, 160 Conn. 341, 342, 278 A.2d 822; Kelly v. Bliss, 160 Conn. 128, 130, 273 A.2d 873; Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491, 498, 208 A.2d 748. We view this evidence in the light most favorable to sustaining the verdict. Bartholomew v. Catania, 161 Conn. 130, 132, 285 A.2d 350; Amato v. Sawicki, 159 Conn. 490, 492, 271 A.2d 80.

On the issue of liability the jury reasonably could have found the following facts: In December, 1964, the defendants Gampel and Beckerman, together with Monty Casden, who was subsequently dropped as a party defendant, formed a partnership called G. B. C. Realty Company, for the purpose of constructing an apartment building and holding it for investment. In August, 1966, the plaintiff Ida Pollack entered into a lease with the realty company for apartment 1-R in the apartment house being constructed by the partnership in the that the landlord was responsible for building that the landlord was reasponsible for building maintenance and also that the landlord should be permitted to enter the apartment during reasonable hours to inspect or make necessary repairs. On November 1, 1966, the plaintiff moved into the apartment.

Two months thereafter, the plaintiff heard rumbling and vibrating noises in the wall between her bathroom and the clothes closet. She frequently complained about this situation to the building manager but he never came to her apartment. One month later, the sound in the wall changed from a rumbling, vibrating noise to a sizzing noise like that of a boiling tea kettle. The plaintiff continued to make complaints to the manager and also complained to the building superintendent. After the had complained to the superintendent he visited her apartment once or twice and he heard rumbling and vibrating noises and noticed that the apartment was very hot. He assumed the noises came from the boiler room which was located directly beneath the apartment, yet at no time while he was in the apartment did he leave the living room, enter the bathroom or turn on the water. He did nothing about the plaintiff's complaint except to refer it to the rental manager and to the defendants.

On March 28, 1967, the plaintiff awakened about 3 a.m. Her room was full of steam and she experienced difficulty in breathing. Since she was unable to get help on the telephone, she got out of bed, stepped into ankle-deep hot water which flooded her room, and ran out of the apartment. As a result of this she suffered first- and second-degree burns on her feet and toes and the experience resulted in some heart damage. The hot water came from a hot water branch pipe, which fed the plaintiff's bathroom basin. This had separated from a T-joint fitting which connected that portion of the branch line coming from the building's main vertical supply line to that portion of the branch line which had to the plaintiff's washbasin in her bathroom. This separation, from which not water was still gushing five hours after the plaintiff left the apartment, was the soure of the flood. None of these pipes was visible from the apartment; they were concealed behind a sheetrock will which had to be broken through in order to reach the plumbing for repair. The separated pipes had originally been unified by sweatfitting and soldering in accordance with standard plumbing procedure. A person observing connected pipes which had been fitten and unified in this manner would not, from their outside appearance, be able to detect anything wrong with the joint.

Connecticut subscribes to the common-law view that a landlord is under no obligation or liability to the tenant for personal injuries due to the defective condition of the demised premises or the lack of repair of defects, therein in the absence of an agreement, express or implied to the contrary. Panaroni v. Johnson, 158 Conn. 92, 97, 256 A.2d 246; Pignatario v. Meyers, 100 Conn. 234, 237, 123 A. 263. One of the many exceptions to this rule, however, is where the landlord retains control of a portion of the demised premises. In such a case the landlord must use reasonable care to keep that portion of the premises in a reasonably safe condition. Panaroni v. Johnson, supra, 158 Conn. 98, 256 A.2d 246; Douglass v. 95 Pearl Street Corporation, 157 Conn. 73, 82, 245 A.2d 129; Masterson v. Atherton, 149 Conn. 302, 179 A.2d 592. In order to demonstrate a breach of this duty the plaintiff must show that the defendants had actual knowledge to the defect or that they were chargeable with constructive notice of it, because, had they exercised a reasonable inspection of the premises, they would have discovered it. Kirby v. Zlotnick, supra, 160 Conn. 344, 278 A.2d 822.

During oral argument before this court, the defendants conceded that there was sufficient evidence to support a finding by the jury that the defendants had control of the defective plumbing. The plaintiffs make no claim of actual notice of a defect. Hence, the primary issue relative to liability is whether the defendants had constructive notice of the defect. We must decide whether the jury reasonably could conclude from the evidence that the defendants, in the exercise of a reasonable inspection, would have discovered that the hot water branch pipe and tHE t-joint were defectively connected. the defendants contend that there was no evidence from which the jury could so conclude.

There was evidence from which the jury could have found that the defendants' agents failed to make a reasonable inspection of that part of the premises which was defective and it is therefore no defense that no defect was in fact discovered prior to the accident. The defendants rely heavily on the fact that visual inspection of a sweat-fitted and soldered connection of pipes would reveal no defect in the connection, but it is well established that visual observation alone does not amount to a reasonable inspection. Long v. Savin Rock Amusement Co., 141 Conn. 150, 152, 104 A.2d 221; Klahr v. Kostopoulos, 138 Conn. 653, 656, 88 A.2d 332. It is true that, to charge the defendants with liability, the notice must have been of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect and subsequently in fact producing it. The greater the likelihood of danger, however, the greater is the amount of care required in making an inspection of premises to meet the standard of due care. DeSantis v. New England Furniture Co., 132 Conn. 134, 138, 42 A.2d 792. The controlling question in deciding whether the defendant had constructive notice of the defective condition is whether the condition had existed for such a length of time that the defendants' employees should, in the exercise of due care, have, discovered it in time to have remedied it. Morris v. King Cole Stores, Inc., 132 Conn. 489, 492, 45 A.2d 710. What constitutes a reasonable length of time within which the defendant should have learned of the defect, how that knowledge should have been...