Action by Benjamin Seligman against Etta Simon, Sadie Goldberger and Isadore Goldberger for personal injuries and medical expenses, based upon alleged negligence of defendants in maintaining a defective ceiling in a confectionery shop leased by defendant Simon to defendants Goldberger. On motion to dismiss the complaint for failure to state a cause of action as to defendant Simon, the Superior Court, Carey, J., held that since the complaint did not charge that defendant Simon knew or should have known of the alleged defective condition, or that the ceiling was under her control, and omitted any allegation as to what caused the ceiling to fall, no cause of action against her was disclosed.
[46 Del. 302] Action for personal injuries and medical expenses based upon negligence. Motion to dismiss as to defendant Simon for failure to state a cause of action.
The complaint alleges that defendant Simon is the owner of a building in Wilmington, and on February 25th, 1950 rented a part of it, known as 2424 and 2426 Market Street, to the defendants Goldberger for use as a confectionary shop. In the lease, the landlord reserved the right to enter the premises for the purpose of making repairs. The agreement provided, however, that all repairs, even if made by the landlord, should be at the expense of the tenants.
The complaint further alleges that the defendants Goldberger operated the premises as a confectionary shop from and after the date of the lease. It avers that the plaintiff went to the shop on June 15th, 1950 and, while he was sitting therein as a customer, the entire ceiling, including the plaster and metal laths, fell down. Some of the material struck the plaintiff and
[46 Del. 303] caused his injuries. Defendant Simon has moved for dismissal as to her under Rule 12(b)(6).
Abraham Hoffman (of Hoffman & Hoffman), Wilmington, for plaintiff.
William Bennethum (of Morford, Bennethum, Marvel & Cooch), Wilmington, for defendant Simon.
No appearance for defendants Goldberger.
CAREY, J., sitting.
The question raised by defendants' motion is whether the complaint sets forth circumstances justifying a finding that the landlord violated any duty she owed the plaintiff. We are not herein concerned with any possible liability of the tenants.
It is not argued that the terms of the lease concerning repairs have any material effect upon the landlord's duties and responsibilities so far as this case is concerned. The plaintiff's brief suggests two possible theories of liability. Urging that the entire ceiling is a matter of construction rather than repair, he argues that (1) a dangerous condition existed at the time of the renting, and (2) the ceiling was a part of the building under the control of the landlord, the maintenance of which was essential to the safe use of the leased premises. In support of the first theory, he cites 32 Am.Jur. 699, Sec. 822 and 52 C.J.S., Landlord and Tenant, § 431b, p. 107, to the general effect that the landlord is ordinarily liable for negligent construction of premises and one who demises a building in a dangerous and defective condition may be liable to a stranger injured thereby. In support of the second theory, he cites 32 Am.Jur. 654, Sec. 768, and 2Restatement of Torts 980, Sec. 361, to the general effect that the landlord is responsible for injuries caused by his failure to keep in repair those parts of a building which are retained under his control, or used in common by his tenants.
I have no fault to find with the principles of law laid down in the cited authorities, subject to the exceptions and limitations elsewhere found in those same texts. The difficulty here lies in the absence of any pleaded facts to justify the application of either of the foregoing theories to the present action.
In the first place, there is nothing to show that the ceiling was faultily constructed or was in a defective condition at the time of the letting. The complaint complaint contains no positive [46 Del. 304] averment of either charge. To infer negligent construction or defective condition at the time of renting from the mere fact of the falling would clearly be improper, for it is common knowledge that such a fall can be the result of other causes. To infer one or the other from the length of time which elapsed between the renting and the accident ...