Reitmeyer v. Sprecher

• Decision Date: 01 July 1968
• Citation: 243 A.2d 395,431 Pa. 284
• Parties: Meda F. REITMEYER and Joe A. Reitmeyer, Appellants, v. Harold H. SPRECHER.
• Court: Pennsylvania Supreme Court

Page 395

243 A.2d 395

431 Pa. 284

Meda F. REITMEYER and Joe A. Reitmeyer, Appellants, v. Harold H. SPRECHER.

Supreme Court of Pennsylvania.

July 1, 1968.

[431 Pa. 285] James F. McClure, Jr., Lewisburg, for appellants.

Richard Henry Klein, Sunbury, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION

JONES, Justice.

This appeal presents a narrow, albeit an important, issue: is a landlord subject to liability in tort for physical harm caused to his tenant by a defective condition of the leased premises which existed when the written lease was executed and which the landlord orally promised the tenant, when the lease was executed, that he would repair?

This matter comes before us on two pleadings, i.e., a complaint in trespass and preliminary objections thereto, in the nature of a demurrer, which allege that the complaint facts do not set forth a cause of action.

Meda Reitmeyer and Joe Reitmeyer (Reitmeyers) executed a printed lease for one of four row houses the owner of which was Harold Sprecher. Allegedly, the rear porch floor of the leased premises--approximately three feet above ground access to which is by three wooden steps--was defective where the wooden porch floor overhung the top step and, allegedly, such defect was known to Sprecher. At the time of execution of the lease and, in consideration thereof, allegedly Sprecher orally promised to repair promptly or to provide promptly the materials to repair the leased premises including specifically repair of the rear porch floor and steps and, in reliance upon such promise, Reitmeyers executed the lease and took possession of the premises. Sprecher subsequently repeated the original oral promise to make repairs to the premises. Approximately two months after execution of the lease and the entry of Reitmeyers into possession of the premises, Mrs. Reitmeyer fell and injured herself as a result of a defect in the rear porch floor. Sprecher had not made any repairs nor had he provided materials for repairs as promised. ¹

Reitmeyers instituted an action in trespass against Sprecher in the Court of Common Pleas of Union County by the filing of a complaint to which Sprecher filed preliminary objections. The court sustained the preliminary objections and dismissed the action. From that order the instant appeal stems.

Thirty-one years ago, on Substantially similar facts, in Harris v. Lewistown Trust Co., 326 Pa. 145, 191 A. 34, 110 A.L.R. 749 (1937) we held that a promise on the part of a landlord to repair the premises, made at the time of negotiation of the lease and subsequently repeated, which was not performed did not impose upon the landlord a liability In tort at the suit of the tenant for injuries sustained by the tenant.

Counsel for Reitmeyers frankly concedes that, unless we now overrule Harris, Harris governs the instant situation and requires affirmance of the court below. What counsel for Reitmeyers urges is that Harris be reconsidered and overruled and that we adopt Section 357 of 2 Restatement of Torts, 2d, which enunciates a view contrary to that expressed by this Court in Harris.

Section 357, supra, provides:

'Where Lessor Contracts to Repair.

'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 had taken possession if (a) the lessor, as such, has contracted by a convenant 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. ² ' Counsel for Reitmeyers argues that, although the majority of the jurisdictions of the American courts still adhere to the Harris view and reject the Restatement view, as of 1964 'An increasing minority of the courts, but only slightly less in number, have worked out a liability in tort for such injuries to person or property, finding a duty arising out of the contract relation.' (Quoting Prosser Torts, at 422 (3rd ed. 1964), and that 'As of this writing, twenty jurisdictions reject the tort liability, and seventeen accept it. The latter include Illinois and Mississippi, which make qualifications.' (Quoting Prosser, supra, at 422, n. 32).

In re-examining Harris, we initially note that the instant issue does not involve a landlord's promise to repair which is not supported by consideration wherein no duty on the part of the landlord can arise (Singer v. Eastern Columbia, Inc., 72 Cal.App.2d 402, 164 P.2d 531 (1945)) nor a situation wherein the landlord has undertaken to make repairs and has done so negligently in which situation a duty on the part of the landlord does arise (Green v. Independent Oil Co., 414 Pa. 477, 485, 201 A.2d 207 to the execution of a lease, for premises 105 A.2d 70 (1954); Fleming v. Philadelphia Co., 234 Pa. 74, 82 A. 1095 (1912)). Moreover, we are mindful that this Court, in Hayden et ux. v. Second National Bank of Allentown, 331 Pa. 29, 31, 199 A. 218, 219 (1938), speaking of the principles enunciated in Harris, stated: '* * * from them we have no intention to depart'.

The framers of section 357, supra, have clearly set forth their reasons for rejection, by implication, of the Harris rule and the adoption of a rule imposing liability. Such reasons may be summarized: (A) 'an increasing recognition of the fact that tenants who lease defective premises are likely to be impecunious and unable to make the necessary repairs which their own safety and that of others may demand; that one who was in possession of the premises only for a limited term does not have the same incentive to maintain them in good condition as the lessor to whom they will revert at the end of the lease; and that the landlord who receives benefit from the transaction in the form of rent may properly be required to assume in return at least certain limited obligations with respect to the safety of others.'; ³ (b) by reason of the special relation between a landlord and a tenant, there is a likelihood that the latter will rely upon the former to make repairs and be induced to forego efforts which he would otherwise make to remedy dangerous conditions on the premises; (c) while the landlord retains no right to exclude anyone from the land or control its use and his right to enter arises only from an agreement to repair the land, at least to the extent of his undertaking, the landlord retains a form of 'control' over the premises; (d) while the landlord does not insure the safety of the premises, he does have a duty which, although founded on a contract, is a duly cognizable in tort and the landlord should be liable if his failure to make repairs in accordance with his undertaking is due to his failure to exercise reasonable care to that end; (e) by analogy to a situation where an apartment or office can be used with safety only if light and heat is provided and in the lease the landlord agrees to provide such service, the landlord should be subject to liability for bodily harm caused by a failure to exercise reasonable care to make the premises safe. ⁴ With the possible exception of the fictitious 'control' theory under (c) supra, the reasons advanced are sound.

Negligence, not simply the breach of the agreement to repair, is the gist of the action in tort and the agreement to repair does not render the landlord liable unless he has knowledge of the defect when the lease is executed and the agreement to repair made and then only when consideration can be found to support the agreement to repair. ⁵

We must recognize the fact that, since the time when Harris was decided, critical changes have taken place economically and socially. Aware of such changes, we must realize further that most frequently today the average prospective tenant vis-a-vis the prospective landlord occupies a disadvantageous position. Stark necessity very often forces a tenant into occupancy of premises far from desirable and in a defective state of repair. The acute housing shortage mandates that the average prospective tenant accede to the demands of the prospective landlord as to conditions of rental, which, under ordinary conditions with housing available, the average tenant would not and should not accept.

No longer does the average prospective tenant occupy a free bargaining status and no longer do the average landlord-to-be and tenant-to-be...