Youngset, Inc. v. Five City Plaza, Inc.

• Decision Date: 04 January 1968
• Citation: 156 Conn. 22,237 A.2d 366
• Parties: YOUNGSET, INC. v. FIVE CITY PLAZA, INC.
• Court: Connecticut Supreme Court

Page 366

237 A.2d 366

156 Conn. 22

YOUNGSET, INC. v. FIVE CITY PLAZA, INC.

Supreme Court of Connecticut.

Jan. 4, 1968.

Ralph M. Shulansky, Hartford, for appellant (defendant).

H. David Leventhal, Hartford, with whom were Herbert A. Krasow, Hartford, and, on the brief, Harold Monoson, West Hartford, for appellee (plaintiff).

Before ALCORN, HOUSE, THIM, RYAN and COVELLO, JJ.

COVELLO, Acting Justice.

The plaintiff brought this action to recover damages for injury to certain merchandise in a store located at 1465 New Britain Avenue in West Hartford and leased by the defendant to the plaintiff. The court rendered judgment for the plaintiff, and the defendant has appealed.

The lease between the plaintiff and the defendant is dated November 21, 1960, and became effective on March 21, 1962. The store was in a newly constructed shopping center and was occupied by the plaintiff for the business of selling children's clothing at retail. In the rear of the store and immediately under the roof of the building, there was a balcony which was used by the plaintiff for the storage of merchandise. The lease contained the following provisions: Paragraph 19: '* * * Tenant shall at all times keep the premises * * * and all partitions, doors, fixtures, equipment and appurtenances thereof * * * in good order, condition and repair, damage by unavoidable casualty excepted, except for structural portions of the premises, which shall be maintained by Landlord * * *. The Landlord shall after receipt of written notice from Tenant, make any necessary repairs only to the exterior of the building * * *.' Paragraph 26: '* * * Landlord or its agents shall not be liable for any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water, rain or snow or leaks from any part of said building or from the pipes, appliances, or plumbing works or from the roof, street or sub-surface or from any other place or by dampness or by any other cause of whatsoever nature, unless caused by or due to the negligence of Landlord, its agents, servants or employees * * *.'

In April, 1962, water and tar leaked through the roof and damaged some merchandise stored on the balcony. The plaintiff notified the defendant, which, through its maintenance supervisor, summoned a roofing company to make repairs, and the roofing company undertook to make them. Despite the repairs made by the roofing company prior to June 5, 1962, water still leaked and pitch kept dripping into the store. The plaintiff notified the defendant numerous times, and on each occasion the defendant sent a representative to check the roof. Between April and June, 1962, the roofing company made repairs approximately ten times. The repairs included the installation of 'tar catchers' under the roof and 'pitch boxes' around pipes which protruded through the roof. In June, 1962, following a rainstorm, water, together with tar, leaked into the store and caused more serious damage than had occurred before. Thereafter, oversized gutters and drainpipes were installed on the building, and the plaintiff experienced no further problems with leakage of water or tar.

The complaint is in two counts. The first count alleges a cause of action for breach of covenant to make repairs to the structural portions of the premises of which the rented store was a part. The second count alleges a cause of action for negligence in failing to repair the defective roof or parts thereof.

Although the complaint is in two counts, one for breach of covenant and the other for negligence, the basic issue in each count is negligence. Where a person leases premises to another and covenants or agrees in the lease or otherwise to keep the premises in repair, he is liable in damages to the lessee if he fails to exercise reasonable care to make the repairs. Masterson v. Atherton, 149 Conn. 302, 311, 179 A.2d 592; Chipman v. National Savings Bank, 128 Conn. 493, 496, 23 A.2d 922; DesMarchais v. Daly, 135 Conn. 623, 625, 67 A.2d 549; Scibek v. O'Connell, 131 Conn. 557, 559, 41 A.2d 251; Papallo v. Meriden Savings Bank, 128 Conn. 563, 565, 24 A.2d 472; Restatement (Second), 2 Torts § 357. Since the duty arises out of the existence of the contract to repair, the contract defines the extent of the duty. Masterson v. Atherton, supra, 149 Conn. 312, 179 A.2d 592. The contract in the present case provides that the defendant shall not be liable to the plaintiff for the damage sought to be recovered unless it was caused by or due to the negligence of the defendant, its agents, servants, or employees. In these circumstances, negligence, not the breach of the agreement, is the gist of the action, and it follows that the necessary elements to establish negligence on the part of the defendant must be proven if the plaintiff is to be entitled to recover. DesMarchais v. Daly, supra; Scibek v. O'Connell, supra. The court has found that in June, 1962, when water and tar leaked through the roof above the plaintiff's leased premises it became evident that the previous repairs had not been performed in a skilful and workmanlike manner. The court concluded, however, that there is no evidence on the basis of which the defendant can be held liable in negligence. This conclusion is inconsistent with the further conclusion that the defendant is liable for...