Putnam v. Stout

• Citation: 345 N.E.2d 319,38 N.Y.2d 607,381 N.Y.S.2d 848
• Parties: , 345 N.E.2d 319 Ruth A. PUTNAM, Respondent, v. John D. STOUT, Jr., et al., as Executors of Richard Steigler, Deceased, et al., Appellants. (And Three Other Actions.)
• Decision Date: 24 February 1976
• Court: New York Court of Appeals Court of Appeals

Page 848

381 N.Y.S.2d 848

38 N.Y.2d 607, 345 N.E.2d 319

Ruth A. PUTNAM, Respondent, v. John D. STOUT, Jr., et al., as Executors of Richard

Steigler, Deceased, et al., Appellants. (And Three Other Actions.)

Court of Appeals of New York.

Feb. 24, 1976.

Thomas R. Newman and Benjamin H. Siff, New York City, for John D. Stout, Jr., and another, appellants.

William F. McNulty and Anthony J. McNulty, New York City, for The Grand Union Co., appellant.

Frank J. Amabile, Brooklyn, for respondent (landlord).

Frank J. Amabile, Brooklyn, for respondent (tenant).

GABRIELLI, Justice.

Plaintiff sustained serious injuries when her left shoe became caught in a hole causi her to fall on her back in the driveway adjoining a supermarket and parking lot leased by defendant Grand Union from Richard Steigler. ¹ Following a jury trial, judgment was entered in favor of plaintiff and against the defendants in the sum of $125,000, liability being apportioned 25% Against Grand Union and 75% Against the Steigler estate. The Appellate Division affirmed, two Justices dissenting. Both Grand Union and the executors appeal and, in separate briefs, assert that plaintiff failed to establish, as to them, that they had notice of the defective condition which caused her harm or that they had sufficient control of the premises to be found blameworthy.

We affirm and hold that there was sufficient evidence to support the verdicts against the defendants. In so doing we have found it necessary and appropriate to re-examine o holding in Cullings v. Goetz, 256 N.Y. 287, 176 N.E. 397, and adopt the rule that a lessor may be liable for harm caused to others upon his land with the permission of the lessee, on the basis of his contract to keep the premises in good repair.

At trial, plaintiff testified that after completing her shopping chores in the store, she left through the front entrance and turned to proceed along the sidewalk adjacent to the building and driveway, leading to a rear lot where her car was parked. However, the far end of the sidewalk was blocked by cartons and rocks and, thus, she was compelled to walk part of the way in the driveway. She then testified that a short distance after she stepped off the sidewalk into the driveway, her left shoe became caught in a hole, causing her to fall.

Plaintiff described the hole as being irregularly round, approximately 10 inches in diameter and 2 inches below the surface. This description was corroborated by an independent witness, the police officer who was called to the scene of the mishap. In fact, the officer described the hole as being from two to four inches in depth. In addition, the record clearly demonstrates that the area around the hole was rutted, cracked and had holes in it, and, further that plaintiff had been to the same store 10 days to 2 weeks prior to the accident and, at that time, had observed that the accident area was cracked, rutted and had uneven surfaces and impressions.

Testimony was also adduced that Grand Union employees regularly used the driveway to unload delivery trucks at a side door that opened to the driveway, and to return shopping carts that store patrons left in the rear lot.

The executors called a construction superintendent who testified that some two and one-half months prior to the accident, at the request of the owner, he had repaired the parking lot, which had deteriorated due to gasoline spillage and 'what not'. Although he did not specifically recall looking at the driveway, he was able to state that the parking area, which he had repatched, had the same aged blacktop surface as the driveway.

Grand Union called no witnesses.

Although it is usually stated that the occupier of land is not the insurer of the safety of those who enter with his permission, his 'obligation of reasonable care is a full one' (Prosser, Torts (4th ed.), § 61, p. 393). Thus, while it is not enough for plaintiff merely to show that danger existed, if he demonstrates that the defect which caused his harm was of such character or duration that a jury could reasonably conclude that due care would have uncovered it, recovery may be had against the occupier of the land (Richardson v. Cannold Holding Corp., 308 N.Y. 932, 127 N.E.2d 85; Szczepkowicz v. Khelshek Realty Corp., 280 App.Div. 524, 113 N.Y.S.2d 870; Prosser, Torts (4th ed.), p. 393; 2B Warren's Negligence, Landlord and Tenant, § 18.01). Likewise, for a landlord to be held liable for a defective condition upon the premises he must have actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, he should have corrected it (Harrington v. 615 West Corp., 2 N.Y.2d 476, 481, 161 N.Y.S.2d 106, 108, 141 N.E.2d 602, 603; Dollard v. Roberts, 130 N.Y. 269, 29 N.E. 104; cf. Molte v. Corn Exch. Bank Trust Co., 267 N.Y. 544, 196 N.E. 570; 2 B Warren's Negligence, Landlord and Tenant, § 6.01 Et seq.).

Neither the Grand Union nor the executors seriously contest the applicability of these rules. However, they argue that the evidence adduced to show they had notice was insufficient as a matter of law. We cannot agree. Credible testimony was adduced that the hole was of such size as to be plainly visible, that the condition existed for at least 10 days to 2 weeks prior to the accident and that the driveway area was deteriorated. It was also shown that Grand Union employees often traversed the area and, thus, had ample opportunity to discover the defective condition and have the employer effect a repair. Additionally, it may be argued that because of the blocking of the sidewalk which patrons ordinarily would have been expected to utilize, Grand Union, in the exercise of reasonable care, should have taken additional measures to insure safe passage over the driveway. Moreover, insofar as the liability of the landlord is concerned it is pertinent to note that while he had the parking lot repaired,no effort was made to repair the driveway, which was originally built and laid at the same time, and had at least as much vehicular traffic; all of which when coupled with the trial testimony might reasonably have led the jury to find that the driveway was deteriorated and in a dangerous condition and, thus, that the landlord had constructive notice of that condition.

We turn then to the issue whether control over the premises was established. Grand Union argues that a 1948 easement agreement between the landlord and two other neighboring store owners, as tenants, transferred some control over the driveway to parties other than itself. Reliance is specifical placed on paragraph 4 in which Steigler agreed to keep the premises and, expressly, the driveway in good repair for the use of the tenants. However, the argument overlooks the provisions of paragraph 3 of the same agreement which provides that it is 'subject to' the 1946 lease between Grand Union, as tenant, and Steigler, as landlord.

Insofar as is pertinent here, the 1946 lease ² provides that it covers the Grand Union store building and driveway 'for the sole use of the tenant'. Thus, notwithstanding any contrary provisions in the 1948 easement agreement, it is clear that since that agreement was subject to the 1946 lease, Grand Union retained control of the driveway. Moreover, and significantly, paragraph 3 of the 1946 lease provides that: '(t)he Tenant covenants and agrees that it will make all necessary incidental repairs to the interior of the demised premises. All other necessary repairs the Landlord agrees to make * * * Should the Landlord neglect or refuse to make any such repairs * * * within a reasonable time after notice that the same are needed, the Tenant without liability or forfeiture of its term hereby demised may have such repairs made at the expense of the Landlord and may deduct from the rent the cost thereof.' Therefore, by the express terms of the lease, Grand Union had the right and, perforce, the control necessary to effect repair of the driveway and, thus, was properly found liable.

We now turn to the issue of the lessor's liability to plaintiff.

Relying on our holding in Cullings v. Goetz (256 N.Y. 287, 290, 176 N.E. 397, Supra) that 'a covenant to repair does not impose upon the lessor a liability in tort at the suit of the lessee or of others lawfully on the land in the right of the lessee', the lessor argues that plaintiff's evidence of the owner's covenant to repair was insufficient to cast him in liability. Plaintiff asserts that De Clara v. Barber S.S. Lines, 309 N.Y. 620, 132 N.E.2d 871, changed the Cullings rule, at least in cases where the lease expressly permits the landlord 'to come and go upon the leased premises as he pleases for the purpose of inspection and repair' (p. 630, 132 N.E.2d p. 876) and where there is the additional evidence, as there is here, that the landlord actually came upon the premises and effected repairs.

The present case falls somewhere between the two cit cases. Here, the covenant to repair, implicitly at least, recognizes the landlord's right of entry (see paragraph 3 of the 1946 lease where it provides that if the landlord does not effect repairs, the tenant may do so) and the evidence at trial showed that the landlord actually made a substantial repair (to the rear parking lot). To this extent, then, this case is akin to De Clara. However, Grand Union also had the Right to make repairs, a right not given the De Clara tenant, and the record is barren of any evidence that the landlord regularly made inspections or repairs, as did the De Clara landlord. Thus, the case is also distinguishable from De Clara and bears but some resemblance to Cullings where the plaintiff relied solely upon the covenant to repair to establish the lessor's control. However, rather than decide which case should be considered controlling, the time has come, we think, to re-evaluate our adherence to the Cullings rule and reappraise the modern trend toward assessing liability solely upon...