The rules of law applicable to these relationships are quite different. The basis of the second count is the liability of a lessor of real property for failure to warn the lessee of known defects in the premises. The first count rests upon his asserted liability as a contractor for defects in the erection of the house. As justifying recovery upon the second cause of action, it is argued that a lessor is liable for a latent defect in the premises, known to him and unknown to the lessee, if he allows the lessee to occupy the building in ignorance of the risk.Įach cause of action pleaded in the complaint charges Depaoli with liability for damages in a separate and distinct capacity. The appellant contends, as a ground for reversal of the judgment subsequently entered, that a building contractor is liable to a third person for negligence if the work performed results in a defective condition which makes the use of the building imminently dangerous. Upon this evidence the trial court granted a motion for nonsuit. At neither time did he observe any defect in the construction of the railing which was the cause of the accident, and he gave the lessee no warning of any hidden defect. He made another inspection of the property at the time of the conveyance to him. Īccording to Depaoli's testimony, although he did not superintend the building operations, he made an inspection of the house in 1926 when it was sold. Depaoli acquired it in 1937 by purchase from the then owner. It also appears that if the railing was improperly constructed the defect was a latent one because the nail heads were concealed by putty and paint. In his opinion, the railing had not been toenailed correctly proper construction, he said, required four 8- penny finishing nails at each corner. The railing which gave way was built with finishing nails and one witness stated that he did not think it had been "properly nailed in the first place." He testified that from another portion of the railing he took out one 6-penny and one 8-penny finishing nail. In their building activities, Ferreiros supervised the building operations and Depaoli handled the sales. The evidence offered in support of these allegations, stated most favorably to the appellant, shows that the house was constructed in 1925 by Depaoli and L. A second count alleged that as lessor he had fraudulently concealed a known defect on the premises. The first count of the amended complaint charged Depaoli with liability for the accident by reason of negligence in the construction of the railing. The appeal is from a judgment which followed an order granting a nonsuit. The railing on the back porch of the house collapsed when the girl, then 18 years of age, leaned against it, and she received serious injuries as the result of her fall to the concrete walk some 10 feet below. Louis Depaoli was the owner of real property which he leased to the mother of Doris Hale, a minor. Sullivan for Appellant.īronson, Bronson & McKinnon for Respondent.
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