Lusk v. Peck

“Was the structure which fell causing the plaintiff’s injuries of sufficient strength at the time it was erected to safely support the number of people it was designed to seat?”

To this the jury answered “Yes.” By this answer any question of the original defective construction of the bleachers was eliminated and the issue considerably narrowed. The plaintiff gave proof tending to show that when the lease was made by the appellant to Kuntzsch & Griffin in March, 1905, and also in 1906, the structure had badly deteriorated, and had become unsafe and inadequate for the purpose intended. The bleachers were uncovered. They were located on wet marshy ground. There were no caps or coverings on the tops of the uprights or supports where the girders joined to prevent the rain from soaking into these posts. They were thus exposed to the inclemencies of the weather in a changeable climate. Builders and architects testified that sound well-seasoned hemlock uncovered, as this structure was, would become impaired and its sustaining strength materially lessened within from two to four years after it was put in place.' They examined the broken rotten timbers, and testified that the deterioration extended back for more than two years prior to the accident. They also testified that the decayed condition could have been readily ascertained by striking the timbers with a hammer or even with the hand, and that an inspection of the surface of these timbers would have disclosed their defective condition. The court in his charge to the jury very carefully explained the effect of the imperfect original building of the structure as pertaining to the liability of the defendant. He then explained the repair clause in each lease, and, adverting to the question of the condition when the property was leased in case the original construction was proper, he said:

“Now, if it bad already rotted so that it was apparent then the question is, was it Mr. Peek’s duty as the owner of the property and granting such a lease to look over those bleachers for the purpose of discovering whether there was a rotten timber there or not, and, if he found one, to replace it with a good timber, or to notify the lessees of the existence of the rotten timber so that they could replace it? Now there comes, gentlemen, a question of what an ordinarily prudent and cautious man ought to do under those circumstances. Are you able to say from this evidence whether a rotten condition needing repairs existed at that time? * * * If you find that the structure was sufficient in the first place, and that there had been no decay, the decay hadn’t progressed to such an extent as to make the structure unsafe for use at the time the lease was made to Kuntzsch & Griffin which was in force at the time of this accident—that is, the lease which was made in the spring of 1906—then I charge you that there can be no recovery by the plaintiff in this case. If the fall of the bleachers was due to some decay of particular timber occurring after these tenants took possession under their last

lease, then I charge you that it was not the fault of Mr. Peck, but was the fault of the tenants, whose duty it was tq replace, to repair or replace, any timbers which became defective during the term which they occupied .under their lease. But if you are able to find from this evidence that by reason of decay the timbers, or some of them, were so defective at the time that the lease was made that it was unsafe to lease the grounds for public admission, public use, then you have to consider whether Mr. Peck was negligent in failing to discover that condition of the timbers, in failing to notify the tenant or make some provision for having the timber replaced before surrendering possession under the last lease to the tenants.”

We therefore start with the fact established that the structure was adequate when originally put up. We also are justified - in assuming the jury found that at the time the appellant parted with the possession of the property the bleachers had become so weakened that they were unsafe, and that any reasonable inspection or test would have revealed this defective condition. The rule is a general one that, where the owner leases property, he is not liable to the lessee or to any one else for its condition, nor does he impliedly warrant that it may be used for the purpose apparently designed. Jaffe v. Harteau, 56 N. Y. 398 , 15 Am. Rep. 438 ; Steefel v. Rothschild, 179 N. Y. 273 , 279, 72 N. E. 112 ; Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310 , 314, 66 N. E. 968 , 61 L. R. A. 829 . This rule is not an unvarying one. If the premises when leased were in- a defective condition constituting a nuisance, the liability of the lessor for the results of the nuisance continues, even though the lessee may be liable. Swords v. Edgar et al., 59 N. Y. 28 , 17 Am. Rep. 295 ; Barrett v. L. O. Imp. Co., 174 Ñ. Y. 310 , 66 N. E. 968 , supra. The exception adverted to is especially applicable to the facts in this case. The Athletic Field was intended for games of football and baseball. The territory inclosed by a high fence included eight acres. The bleachers and grandstand were intended to accommodate a large crowd of people. Fourteen hundred bleacher tickets were sold on the day of the accident. The appellant was aware of the purpose for which the bleachers were expected to be used. In the second lease he was to receive an additional $100 for the use of the property “if the Syracuse University Football Team pay three hundred dollars ($300.00) for the use of ‘Athletic Field,’ for such games as they wish to play after the baseball season of 1906 closes.” An important factor in fixing the liability upon a lessor is that the premises are intended to be used by the public. Barrett v. Lake Ontario Beach Improvement Co., supra; Fox v. Buffalo Park, 21 App. Div. 321 , 47 N. Y. Supp. 788 , affirmed 163 N. Y. 559 , 57 N. F. 1109. The owner of a place of entertainment is charged with an affirmative positive obligation to know that the premises are safe for the public use. He may not be exonerated merely because he had no precise knowledge of the defective condition of the place to which he has invited the public. When they accept his invitation and pay the prescribed admission fee, they have a right to assume he has furnished a safe place for them to witness the performance. If he leases the premises knowing the public use is to continue, he must at least be reasonably assured that they have not deteriorated, that they are still safe for occupancy by the public. This obligation requires affirmative action on his part; and, in order that he may be exculpated to one injured

If the impairment occurs during the tenancy, another principle intervenes. In this case the jury have found the defective condition existed at the time of the leasing, and that a reasonable examination would have discovered it. It is not important that the lessors did not build the structure. The original building was adequate, and there is very little proof that a nuisance existed when the appellant acquired title to the property. It does appear that, when the owners leased the same, certainly in March, 1906, the bleachers were a menace to the public, a nuisance. In commenting upon this proposition of the liability of one who does not create the nuisance, but permits its existence, the court in Timlin v. Standard Oil Company, 126 N. Y. 525 , 27 N. E. 788 , 22 Am. St Rep. 845 , says:

“I think that, even if he do not create it, yet if, to his knowledge, it exist on his premises at the time of the demise, and is of a character dangerous to the public or an adjoining owner, or if he were in truth ignorant, and yet by the exercise of reasonable care and diligence he would have known of its existence, there is no principle which can exempt him from responsibility any more than if he create the nuisance himself.”

To the same effect is Ahern v. Steele et al., 115 N. Y. 203 , 22 N. E. 193 , 5 L. R. A. 449 , 12 Am. St. Rep. 778 . The case was submitted on this proposition as-one of negligence. I think this was entirely proper. See dissenting opinion in Barrett v. L. O. B. Imp. Co., 68 App. Div. 601 , 74 N. Y. Supp. 301 ; s. c., 174 N. Y. 310 , 66 N. E. 968 , supra; and other cases cited. The defective condition may have amounted to a private nuisance, yet defendant’s liability may rest upon his omission to ascertain and remedy the defects. The court charged the jury, in effect, that if the defective condition existed when the last lease was made in March, 1906, and not earlier, that the same rule applied as when the first lease was executed. There was no error in this statement. Matthews v. De Groff, 13 App. Div. 356 , 43 N. Y. Supp. 237 . The lessors owned the property in March, 1906, and made a new lease at an increased rental. They had a right to enter the premises and make any examination desired. Had the lease been made to another party, the liability, if it existed in 1905 in the same circumstances, would exist a year later. The plaintiff, a third party, one of the public, is the person injured and the appellant is not relieved as to him be•cause his second contract happened to be made with the same parties as the previous one.

The judgment should be affirmed, with costs.

Judgment and order affirmed, with costs. All concur, except MCLENNAN, P. J., who dissents in memorandum.

Under the charge of the court and the special finding of the jury, the question of nuisance was elimi

I therefore vote for a reversal of the judgment and order appealed from, and for a new trial to the plaintiff, with costs to appellant to abide event.