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Larson v. Straff

: December 31, 1964.


Author: Forman

Before KALODNER, FORMAN and SMITH, Circuit Judges.

FORMAN, Circuit Judge.

Howard Larson (Larson or appellee) sued Dauphin Realty Co., Inc. (Dauphin or appellant) and Daniel V. Straff and Raymond Straff (Straffs), trading as Washington Hotel Garage, in the United States District Court for the Eastern District of Pennsylvania.Dauphin filed a third party action against Joseph Prager and Pearl Prager (Pragers). This appeal centers about alleged trial errors emanating from the four-party negligence action. Appellee, Larson, recovered an $86,000 damage award against Dauphin and the Straffs for injuries incurred while acting in the capacity of a business invitee on a portion of the premises owned by Dauphin. Judgment was entered in favor of the Pragers on Dauphin's third party suit.

The premises, at the time of the injury to Larson, were in the possession of the Straffs, as sublessees of the Pragers, who in their turn had taken a lease from Dauphin. Defendants Straffs are not appealing from the judgment adverse to them. Dauphin has appealed both from the judgment finding it negligent and from the judgment in favor of the Pragers. It has been Dauphin's unsuccessfully argued claim that any liability on its part is to be indemnified by the Pragers under a clause in the original leasing arrangement.

The salient facts, as recognized by the Trial Court, involving the four aforementioned parties to this litigation, are as follows: On January 14, 1958, Larson, an elevator repairman, was seriously injured when an outside third floor concrete platform onto which he had stepped collapsed.This platform was part of the premises known as the Washington Hotel Garage, operated by the Straffs, tenants pursuant to their sublease dated May 1, 1953. The Pragers had leased the premises from the Dauphin Realty Co. under a lease dated the same day. This original lease acknowledged the sublease to the Straffs from the Pragers. Both leasing arrangements provided that all repairs to the premises were to be made by the tenant with the exception of the roof, which Dauphin specifically agreed to maintain.

At the trial Larson argued that there were two grounds upon which Dauphin could be found liable. Larson succeeded in qualifying two expert witnesses who testified that the extent of disintegration of the iron braces which had supported the collapsed concrete platform indicated that the structure was defective prior to the May 1, 1953 leasing arrangements. Thus, Larson contended that it was the duty of the landlord (Dauphin) to abate the pre-existing hazardous condition prior to the leasing arrangements and the change of possession of the premises. Failing to fulfill this duty, Dauphin would be liable for injury arising from such negligence, even though it was out of possession at the time of the injury. This first proposed basis for defendant Dauphin's liability was complemented by a second ground.

Subsequent to the change of possession of the leased premises Dauphin voluntarily painted the iron base and protective railings of the platform, all plainly visible to the eye. Larson contended that such an activity evidenced fulfillment of a maintenance function, and thus, an assumption of control over the platform, which was subsequently to collapse. An improper performance of the maintenance function, argued the plaintiff, would permit a jury to find Dauphin liable.

Together with the Straffs, the jury did find defendant Dauphin liable, after a charge which indicated that either of the two aforementioned grounds could form a basis for finding that liability. The jury also exonerated the Pragers, as third party defendants, from liability on the indemnity clause in their leasing arrangement with Dauphin. Following the verdict, Dauphin moved for a judgment notwithstanding the verdict, or in the alternative, for a new trial. Both motions were denied. The opinion of the District Judge*fn1 dealt with the issues raised by the motions, and it is a brace of objections substantially similar to those reviewed by the Trial Judge upon which we are now asked to rule. In logical order, those issues raised as error on appeal, are:

I. Whether the evidence was sufficient to prove that the structure which collapsed beneath the plaintiff was defective prior to the date of the leasing arrangement and the transfer of possession from Dauphin Realty Co., through the lessees, to the tenants Straffs? Relevant to this issue is the question whether plaintiff's expert witnesses were properly qualified to testify on the subject of the deterioration of the angle iron supports of the platform.

II.Whether the Trial Court committed error in refusing to instruct the jury that if the pre-leasing defect were found to be discoverable by the tenant, the landlord out of possession would be exculpated from liability arising from such a pre-leasing defect?

III. Whether the action of Dauphin in painting portions of the iron work associated with the collapsed platform resulted in the assumption of control over and a duty to maintain the platform area, so as to keep it free from injurious defects?

IV. Whether the Pragers, as lessees, were liable over for the tort of the lessor, Dauphin, as was provided in the indemnity clause of their leasing arrangement?


The Trial Judge in his written opinion disposing of defendant's post-verdict motions concluded that there was sufficient evidence from which the jury could have found that the platform which had collapsed was in a dangerous condition prior to the 1953 leasing arrangement. The jury obviously could have grounded that conclusion on Larson's expert testimony that the portion of the building involved in the accident was at least thirty-four years old in 1953 and that corrosion of the supporting angle irons after thirty years was sufficient to cause the platform to be dangerous. Dauphin argues that because these witnesses were not qualified to testify on the way corrosion takes place, their testimony that the corrosion of the iron platform supports was sufficient at the end of thirty years to cause the platform to be dangerous, should have been disallowed. Dauphin also contends that the failure of these witnesses to pinpoint the time when the platform first became dangerous is indicative of their lack of expertise and is persuasive of their disqualification. Dauphin is aware, however, that an expert witness's qualifications are a matter for trial judges' discretion, but it argued that such discretion has here been abused.

It seems clear that the District Judge acted properly in allowing the testimony of Larson's experts. Witness Keast was a structural engineer, expert in design, inspection and fabrication of structural material for buildings. Witness Thompson had long been associated with the maintenance and inspection of structural steel, miscellaneous iron and ornamental iron. Despite the fact that these men were not knowledgeable on scientific causes of decay of metallic substances, their vast experience in the maintenance and inspection of such materials sufficiently qualified their general calculations concerning the development of the dangerous condition of the collapsed platform. For the same reason, Dauphin's contention, that the vagueness of the expert testimony relative to the time of the existence of the danger made it impossible for the jury to decide that the danger existed prior to May 1, 1953, the date of the leasing, is unacceptable. Contrary to this view, we feel, as did the Trial Judge, that the jury could draw reasoned conclusions from the presented expert testimony.

As the gravamen of Dauphin's contention that there was insufficient evidence from which the jury could have found that the platform was in a dangerous condition prior to May 1, 1953 was the lack of qualification of the expert witnesses, and as we have found these witnesses properly qualified, Dauphin's attack on the sufficiency of the evidence supporting the factual finding of the preexisting defect must fail.


Having determined that the jury could have concluded from the evidence that a pre-leasing defect did exist, the ultimate question necessary to the application of the theory of a pre-existing defect as a basis for landlord liability centers about the relative duties of landlord and tenant towards rectifying the hazard and protecting prospective invitees. The instructions to the jury on this point in no way attempted to explain properly the relationship between the landlord and tenant. As will be demonstrated in the course of this opinion, the one instruction relating landlord and tenant responsibilities was inaccurate in the light of controlling Pennsylvania law. That instruction was as follows:

"In this case plaintiff claims that it was due to both the negligence of the tenant and the negligence of the landlord, and it is his burden to convince you of that. If you should find that both the tenant and the landlord were negligent, then you could find against both of them . If you find only the tenants were negligent, why, then you would find against them. On the other hand, if you found that only the landlord was negligent and his negligence caused the injuries to Mr. Larson, then you could find against them. So you could find against either of them or both ." (Emphasis added.)

With the exception of this instruction, the Trial Judge, in effect, isolated the landlord, and viewed his actions apart from those of the tenant, contrary to the instructions requested by Dauphin*fn2 With this as the approach, it is understandable how both the landlord's liability is found, and the tenant's unquestioned*fn3 But, as will be subsequently discussed, this is the pitfall into which the Trial Court has fallen.

The jury was in effect instructed that if the landlord should have known by a reasonable inspection of his property at the time of the leasing arrangement that some condition was likely to be dangerous, and knowledge of that condition was neither imparted to the tenant nor were repairs undertaken, then such actions form a basis of landlord liability*fn4 Such an instruction stems from a misconception of the governing Pennsylvania law, reflected both in the ...

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