“[T]he nature of the defect might be such that the landlord would reasonably expect that the tenant would take steps to remedy the defect or otherwise to safeguard persons”
How later courts described this case
- “[T]he nature of the defect might be such that the landlord would reasonably expect that the tenant would take steps to remedy the defect or otherwise to safeguard persons”
Written by the judges who cited it.
The opinion
McALLISTER, J.,
dissenting.
It is conceded that the printing press left on the leased premises by the landlord was a dangerous instrumentality, attractive to children. The printing press was not leased to the tenant, nor abandoned .on the premises. It was stored on the leased premises for the benefit of the landlord, with the consent of the tenant.
The landlord had either exclusive control of-the printing press or joint control with the tenant. Although the landlord should have foreseen the probability that children would be attracted to the machine and be injured by it, he took no precaution to prevent such harm. . .
If the press had been stored at defendant’s home and a child injured thereby, the defendant would be *366 liable: If the press had been stored by the defendant in a vacant lot and a child injured thereby, the defendant would be liable. Burroughs v. Pacific Tel. & Tel. Co., 109 Or 404 , 220 P 152 (1923). Why does the landlord acquire immunity by storing the dangerous press in his home and leasing his home to a tenant, when he retains control over both the press and that portion of the premises in which it is stored? The landlord had the same right to make the condition safe both before and after the premises were leased. He consequently had the same duty to make the condition safe both before and after the premises were leased. ■
Only last month we held in Flint v. Snow, 249 Or 509 , 439 P2d 610 (1968), that a landlord who retained joint control of leased premises was liable for damages caused by a dangerous condition (a deféctive fence) of which he had knowledge when he leased the premises. In the Flint case we cited Nash v. Goritson, 174 Or 368, 372, 373 , 149 P2d 325 (1944), which held that the liability of a landlord depended on the control of the instrumentality that caused the injury. In the ease at bar the reservation by the landlord of control over the instrumentality that caused the injury is conceded. Why did we reach one conclusion in Flint v. Snow and a completely contrary conclusion in this ease? The dispositive element of control by the landlord is identical in both cases.
This is not a real property case. The owner of the press is not liable for a defective condition of the leased premises. He is liable because he left a dangerous instrumentality for which he had continuing responsibility in a location where children would be attracted to it and be injured thereby. He was aware of the condition and the unreasonable risk involved *367 and could have made the condition safe, but failed to do so.
I dissent.
Sloan and Holman, JJ., concur in this dissent.