Rampone v. Wanskuck Buildings, Inc.

• Decision Date: 27 March 1967
• Docket Number: No. 10519,10519
• Citation: 227 A.2d 586,102 R.I. 30
• Parties: Marie B. RAMPONE v. WANSKUCK BUILDINGS, INC. Ex.
• Court: Rhode Island Supreme Court

Page 586

227 A.2d 586

102 R.I. 30

Marie B. RAMPONE v. WANSKUCK BUILDINGS, INC.

Ex. No. 10519.

Supreme Court of Rhode Island.

March 27, 1967.

Howard R. Haronian, Providence, for plaintiff

Boss, Conlan, Keenan & Rice, John T. Keenan, Providence, for defendant.

OPINION

KELLEHER, Justice.

This is an action of trespass on the case for negligence to recover damages for injuries received by the plaintiff when she fell in certain premises leased to her employer by the defendant. It is before us on the plaintiff's exception to the sustaining of the defendant's demurrer to her amended declaration.

In her amended declaration, plaintiff alleges in substance that defendant was the owner of certain premises located in Providence; that these premises were occupied by plaintiff's employer under the terms of a written lease which provided that defendant would make certain repairs to the premises including repairs to holes in the wooden floors located therein; that defendant had notice of this condition and the need for repairs; and that as the result of defendant's negligent failure to make the repairs, plaintiff stepped into a hole whereby she fell to the floor and was injured.

In sustaining defendant's demurrer, the trial justice relied on a ruling made by this court in 1904 in Davis v. Smith, 26 R.I. 129, 58 A. 630, 66 L.R.A. 478. There it was held that 'The courts very generally hold that the tenant and his wife, children, servants, and guests can not sue in tort for breach of the landlord's covenant to repair.' The court's decision wherein it cites various cases in other jurisdictions gives a graphic portrayal of the then prevailing judicial sentiment existing in the courts of this country at the turn of the century. One of the propositions of law of that era set forth therein was that recovery in tort against a landlord for his breach of a covenant to repair could be maintained only on a showing that the landlord had been guilty of negligence in the making of the repairs-mere inaction on his part was not enough to support such an action. It was also pointed out that any damages incurred for a landlord's failure to abide by his promise to repair were to be limited strictly to the expense of making the repairs which the landlord had promised to do and nothing more.

The plaintiff acknowledges that the rule set forth in Davis v. Smith, supra, is the law today in Rhode Island. However, she maintains that this rule of no liability in tort for a landlord's failure to discharge his contractual obligation to repair the premises is unsound and should be changed. She points with particular emphasis to the case of Faber v. Creswick, 31 N.J. 234, 156 A.2d 252, 78 A.L.R.2d 1230. There the court in an extensive review of the law in that jurisdiction on the subject that is before us pointed out that originally New Jersey followed the rule set forth in Davis v. Smith. ¹ With the passage of time, however, it became apparent to the court that if an agreement to repair was not honored by the landlord, injury to the tenant would be the likely result and, accordingly, recovery in an action of tort was allowed. ² In Faber the doctrine of privity which had barred and recovery to a person not a party to the agreement was cast aside and the tenant's wife was permitted to pursue her cause of action against the landlord. In the case at bar we are being urged to adopt as the applicable rule of law that principle set forth by the American Law Institute in 2 Restatement of Torts 2d, § 357, p. 241. It reads as follows:

'A Lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if

'(a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and

'(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor's agreement would have prevented, and

'(c) the lessor fails to exercise reasonable care to perform his contract.'

Since 1934, when the Restatement of Torts first took a position that this promise of the landlord gave rise to a duty to exercise due care and hence responsibility for a negligent failure to perform, a growing number of courts have modified the common law and now allow in these circumstances suit in tort by all persons on the demised premises with the tenant's consent. There is respectable authority both pro and con by the various courts throughout the United States on this issue. They have been compiled and are available for study in 78 A.L.R.2d 1241.

The defendant for its part urges that we abide by the holding in Davis v. Smith, supra. In addition it particularly emphasizes that plaintiff, not being a party to the lease, is not in privity with defendant and accordingly should not be permitted to pursue this action.

We can perceive no reason to abide by a rule of law promulgated over a half century ago and leave unchanged a principle which in our opinion no longer serves a useful purpose in today's times. We have witnessed in the field of real-estate endeavors the increased use...