Propper v. Kesner

Decision Date20 June 1958
Citation104 So.2d 1
CourtFlorida Supreme Court
PartiesSelma PROPPER and Irving Propper, her husband, Appellants, v. Philip KESNER, Jennie Kesner and Jean Catsman, Appellees.

Richard E. Hodges, Miami, for appellants.

Harold B. Spaet, Miami Beach, for appellees.

HOBSON, Justice.

This is an appeal by plaintiffs from final judgment for defendants entered consequent upon the granting of defendants' motion for directed verdict at the close of the plaintiffs' case, it being the opinion of the trial court that the evidence was insufficient, as a matter of law, to support a verdict for the plaintiffs.

At the time of the incident upon which suit was brought, defendants owned and managed an apartment house wherein plaintiffs had leased an apartment. As part of the leased premises the defendants furnished appliances, including a gas stove in the kitchen. This suit was occasioned by the explosion of the gas stove, which injured the plaintiff Selma Propper.

From the evidence, the jury could have found that when the plaintiff-tenants leased the apartment they were told that if they had any trouble with the appliances they were not to attempt to repair them, or to provide for their repair, but were to report the matter to the defendant, Philip Kesner, manager of the apartments, and he would see that the matter was taken care of.

During the month before the explosion, Mrs. Propper had difficulty lighting the broiler on the gas stove and reported this difficulty to the apartment manager and owner. When she complained about the condition of the stove, the manager and Jennie Kesner (one of the owners) assured her that the stove was safe and that it normally operated in the manner plaintiff described. Relying upon these assurances, and believing it safe to use the stove, Mrs. Propper, on October 2, 1954, attempted to ignite the burner according to defendants' instructions. She was apparently successful in this attempt, but about two minutes after she closed the oven door the stove exploded, wrecking the apartment and injuring Mrs. Propper.

An expert in gas appliances testified, in response to a hypothetical question based upon facts in evidence, that the burner had been improperly adjusted and that neither the pilot nor the bypass was working.

While it is clear that a landlord may be liable to his tenant for negligently making agreed repairs, Harper & James on Torts, Vol. 2, p. 1514, the landlord's liability for nonperformance of a covenant to repair deserves some comment. Under earlier law, the rule was general that the landlord is not liable for an outright failure to repair, but there is now a pronounced trend toward the view that the landlord may be liable under such circumstances. See Annotation, Breach of Lessor's Agreement to Repair as Ground of Liability for Personal Injury to Tenant or one in Privity with Latter, 163 A.L.R. 300 et seq., and cases cited therein. The modern view has been adopted in the Restatement of Torts, § 357, and we do not hesitate to...

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18 cases
  • Nelson v. Union Wire Rope Corp.
    • United States
    • United States Appellate Court of Illinois
    • January 4, 1963
    ...extensively from the Restatements, as they appear to be highly regarded by the Florida Supreme Court under such circumstances. (Propper v. Kesner, 104 So.2d 1; Rawls v. Ziegler, 107 So.2d 601; Matthews v. Lawnlite Co., 88 So.2d 299; Tampa Drug Co. v. Wait, 103 So. 2d 603, 75 A.L.R.2d Sectio......
  • Nelson v. Union Wire Rope Corp.
    • United States
    • Illinois Supreme Court
    • March 18, 1964
    ...121 N.E.2d 49) In addition, Florida has frequently stated that it will adhere to the views of the Restatement of Torts, (Propper v. Kesner (Fla.1958) 104 So.2d 1; Tampa Drug Co. v. Wait (Fla.1958), 103 So.2d 603, 75 A.L.R.2d 765; Matthews v. Lawnlite Co. (Fla.1958), 88 So.2d 299,) where the......
  • Putnam v. Stout
    • United States
    • New York Court of Appeals Court of Appeals
    • February 24, 1976
    ...59 Cal.App.2d 402, 138 P.2d 733; Davis v. Marr, 160 Colo. 27, 413 P.2d 707; Scibek v. O'Connell, 131 Conn. 557, 41 A.2d 251; Propper v. Kesner, 104 So.2d 1 (Fla.); Williams v. Davis, 188 Kan. 385, 362 P.2d 641; 2310 Madison Ave. v. Allied Bedding Mfg. Co., 209 Md. 399, 121 A.2d 203; Keiper ......
  • Richards v. Dodge
    • United States
    • Florida District Court of Appeals
    • February 13, 1963
    ...is presumed to leave the landlord.' An examination of recent Florida cases discloses no departure from this rule. See Propper v. Kesner, Fla.1958, 104 So.2d 1; Wallace v. Schrier, Fla.App.1958, 107 So.2d 755; Wiley v. Dow, Fla.App.1958, 107 So.2d 166; Moore v. O'Conner, Fla.App., 1958, 106 ......
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