plaintiff alleged sufficient facts to support common law negligence claim asserting that lack of an alternate exit presented dangerous condition in rental property stricken by fire
How later courts described this case
- plaintiff alleged sufficient facts to support common law negligence claim asserting that lack of an alternate exit presented dangerous condition in rental property stricken by fire
- discussing and citing Restatement (Second) of PROPERTY § 17.6: Landlord Under Legal Duty to Repair Dangerous Condition
- plaintiff cannot amend complaint based in negligence to include strict liability claim three years after filing of original complaint
- negligence of the landlord is a matter for determination by the factfinder
Written by the judges who cited it.
The opinion
WIEAND, Judge,
concurring:
I agree with the majority that the alleged negligence of the appellee landlord was an issue for determination by the fact finder. Compare: Young v. Garwacki, 380 Mass. 162 , 402 N.E.2d 1045 (Mass.1980); Pagelsdorf v. Safeco Insurance Company of America, 91 Wis.2d 734 , 284 N.W.2d 55 (1979); Stephenson v. Warner, 581 P.2d 567 (Utah 1978); Sargent v. Ross, 113 N.H. 388 , 308 A.2d 528 (N.H.1973); Dwyer v. Skyline Apartments, Inc., 123 N.J.Super. 48 , 301 A.2d 463 (1973), affirmed without opinion, 63 N.J. 577 , 311 A.2d 1 (1973). However, I am unable to agree that in order to recover the appellant must prove, in addition to negligence, the landlord’s breach of an implied warranty of habitability. A breach of a landlord’s obligation to provide safe and habitable premises gives rise, in my opinion, to potential liability under two alternative and separate theories: breach of an implied warranty of habitability and/or conventional negligence. See: Trentacost v. Brussel, 82 N.J. 214, 231 , 412 A.2d 436, 445 (1980); Young v. Garwacki, supra 383 Mass. 162 , 402 N.E.2d at 1050 n. 9. The injured tenant may recover damages for breach of an implied warranty of habitability for all injuries sustained, whether to his person or to his property, if they have been caused by the landlord’s breach. See and compare: Boudreau v. *435 General Electric Co., 2 Haw.App. 10, 17 , 625 P.2d 384, 390 (1981); Mansur v. Eubanks, 401 So.2d 1328 (Fla.1981); Trentacost v. Brussel, supra 82 N.J. at 227 , 412 A.2d at 443 ; 13 Pa.C.S. § 2715(b)(2). 1 The injured tenant may also proceed under general principles of tort law, without proving a breach of the implied warranty of habitability, and can recover damages for injuries proximately caused by the landlord’s failure to exercise reasonable care to make the premises safe. See and compare: Young v. Garwacki, supra 383 Mass. 162 , 402 N.E.2d at 1049 ; Pagelsdorf v. Safeco Insurance Company of America, supra 91 Wis.2d at 743 , 284 N.W.2d at 61 ; Stephenson v. Warner, supra 581 P.2d at 568 ; Dwyer v. Skyline Apartments, Inc., supra.
. 13 Pa.C.S. § 2715(b)(2) provides:
"(b) Consequential damages.—Consequential damages resulting from the breach of the seller include:
(1) ....
(2) injury to person or property proximately resulting from any breach of warranty.”