Where a person has exclusive control of certain premises the general rule is that he is

responsible for what transpires thereon. Thus, in Wolf v kilpatrick 101 NIYI 146, it was held
that a landlord out of possession is not responsible for an after occurring nuisance unless in
some manner he is in fault for its creation or continuance.

Kalis v Shattuek, 69 Cal. 393, it was held that a landlord of premises, in exclusive possession
and control of a tenant, is not liable to a third- person for injury caused by the fall of an
awning intended solely as a protection against sun and rain, the fall having been occasioned
by the tenant's negligent conduct in permitting a crowd of people to stand upon it. But a
landlord may be liable for injury caused by a nuisance that existed at the time of making the
lease; as, for example, where a building falls and injures the tenant or others by reason of its
being constructed of inferior and poor materials.
Where leased premises harmless in themselves, become dangerous merely by the manner of
their use by a tenatt in possession, the landlord is not liable for injuries arising from such use.
Neither is the landlord liable for injury to his tenant's guest, arising from such a danger as is
created by the negligence of the tenant only.1

the landlord is not responsible, if by the careless use by the tenant they become a nuisance.
(Rich v. Basterfield, 4 Man., Gr. Scott [56 E.C.L.R.] 783.)

H & N Emanuel Ltd. v. Greater London Council and Another (1971) 2 All ER 835, the Court
of appeal was dealing with a case where an independent contractor was negligent resulting in
the escape of fire and damage to the neighbouring building.The Court held the occupier liable
and observed:

An occupier was liable for the escape of fire caused by the negligence not only of his servant,
but also of his independent contractor and anyone else who was on his land with his leave
and licence; the only occasion when the occupier would not be liable for negligence was
when the negligence was the negligence of a stranger, although (per Lord Denning MR) for
this purpose a 'stranger' would include a person on the land with the occupier's permission
who, in lighting a fire or allowing it to escape, acted contrary to anything which the occupier
could anticipate that he would do; in the present case the council were 'occupiers' of the
premises because they had a sufficient degree of control over the activities of persons thereon
and K's men were not 'strangers' because, although they were forbidden to burn rubbish, it
was their regular practice to do so; the council could reasonably have anticipated that the men
would light a fire and ought to have taken more effective steps to prevent them.

The law on the subject is settled in England by the decision of the House of Lords in Wheat
v. E. Lacon and Co. (1966) 1 All ER 582, where Lord Denning applied the test of sufficient

1
Eyre v Jordan, 111 Mo. 424; Clancy v Byrne, 56 N.Y. 129
degree of control and not exclusive or entire control to determine whether the person
concerned was an occupier. The following passage is apposite in this regard:

It was simply a convenient word to denote a person who had a sufficient degree of control
over premises to put him under a duty of care towards those who came lawfully on to the
premises. In order to be an 'occupier' it is not necessary for a person to have entire control
over the premises. He need not have exclusive occupation. Suffice it that he has some degree
of control. He may share the control with others. Two or more may be occupiers. And
whenever this happens, each is under a duty to use care towards persons coming lawfully on
to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a
visitor who is injured in consequence of his failure but each may have a claim to contribution
from the other.

Jesko v. Turk
Annotate this Case
421 Pa. 434 (1966)

Jesko, Appellant, v. Turk.

Supreme Court of Pennsylvania.

Argued March 18, 1966.

May 24, 1966.

Before MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.

*435 James R. Duffy, with him McArdle, Harrington, Feeney & McLaughlin, for
appellants.

Kim Darragh, with him Meyer, Darragh, Buckler, Bebenek & Eck, for appellee.

OPINION BY MR. JUSTICE COHEN, May 24, 1966:

On March 12, 1961, minor plaintiff, who was then 9 1/2 years old, suffered an injury
when, while climbing a 12 foot high, partially erected concrete-block wall of a building
being constructed by defendants, he fell to the ground. As he neared the top he felt
that the blocks beneath his feet were loose. He took another step or two and began
to descend. As he did, a concrete block fell from beneath him. He managed to catch
himself by grabbing the top of the wall and attempted to get a toe hold in an effort to
steady his balance. However the blocks gave way and he was *436 thrown to the
ground. Minor plaintiff had observed other children playing on and around the
building previously, but had never done so himself.

Plaintiffs sued the property owner and the contractors. A compulsory nonsuit was
entered in favor of the property owner, but the trial court entered judgment in favor of
minor plaintiff and his mother against the contractors. On appeal, the Superior Court
reversed and granted judgment n.o.v. in favor of defendant-contractors. From that
decision we granted allocatur.

Section 339 of the Restatement 2d, Torts, provides:

" 339. Artificial Conditions Highly Dangerous to Trespassing Children.

"A possessor of land is subject to liability for physical harm to children trespassing
thereon caused by an artificial condition upon the land if (a) the place where the
condition exists is one upon which the possessor knows or has reason to know that
children are likely to trespass, and (b) the condition is one of which the possessor
knows or has reason to know and which he realizes or should realize will involve an
unreasonable risk of death or serious bodily harm to such children, and (c) the
children because of their youth do not discover the condition or realize the risk
involved in intermeddling with it or in coming within the area made dangerous by it,
and (d) the utility to the possessor of maintaining the condition and the burden of
eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or
otherwise to protect the children." This section eliminates the limitation of the original
section of the Restatement to "young" children, and by the addition of clause (e)
indicates that liability under 339 is predicated on negligence; accordingly, a
possessor of land is not liable if he has exercised reasonable *437 care under the
circumstances. Restatement 2d, Torts, 339, Reporter's Notes. We believe that the
new 339 represents a wise revision of the original section, and we hereby indicate
our approval thereof and adopt it as the law of this Commonwealth, even as we
formerly adopted the earlier section in 1949 in Bartleson v. Glen Alden Coal Co., 361
Pa. 519, 64 A.2d 846 (1949).

All five requirements of 339 must be satisfied if a possessor of land is to be held

liable. Clause (d) requires a weighing of the interests involved the cost of
"childproofing" versus the danger of harm to children. Plaintiffs have not satisfied us
that the utility to defendants of maintaining the partially erected wall without making it
safe for children was overcome by the risk it presented to children.

Having concluded that clause (d) was not satisfied, we need not discuss the other
clauses of 339. We wish, however, to indicate our disapproval of the Superior
Court's determination that the present case is controlled by Dragonjac v. McGaffin
Construction & Supply Co., 409 Pa. 276, 186 A.2d 241 (1962). In Dragonjac, minor
plaintiff fell from the top of a newly erected wall which he had ascended. The risk
which the child realized in that case was that of falling. So, too, in the present matter,
minor plaintiff might have been held to have realized the risk that he might fall while
climbing a wall, but not that the wall might crumble under him. In addition, in
Dragonjac we stated that plaintiffs must fail because, among other reasons, ". . . the
minor plaintiff and his parents assumed the risk." (Emphasis supplied.) 409 Pa. at
280, 186 A.2d 243. This was an unfortunate statement because 339 makes no
mention of the conduct of the parents, and, in no event, would a minor plaintiff be
precluded from recovery in a personal injury action on the ground that his parents
assumed the risk. In any *438 event, plaintiffs cannot prevail because every
requirement for liability under 339 has not been satisfied.

Judgment of the Superior Court affirmed.

Mr. Justice MUSMANNO dissents.