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October 1st, 2019
You live in an apartment complex that has a property manager, who has the responsibility to maintain the property, including the removal of snow and ice, and other safety issues. You are seriously injured when you fall on snow and ice that has been on the sidewalk for a couple of days. You have a lease with the apartment owner, but no contract with the property manager. So, what are your rights against the property manager, who failed to address the snow and ice, but with whom you have no contract? What duties does a property manager owe a tenant arising from a contract with the landlord?
The answer to this is rather simple – it is the same duties owed under the contract with the property owner. In Prost v. Caldwell Store, Inc., 187 A.2d 273 (Pa. 1963), the defendant alleged a lack of contract with the plaintiff as a viable defense. The Court rejected the proposition that “generally a party to a contract does not become liable for a breach thereof to one who is not a party thereof.” To this proposition, the Court stated that “This is like pointing to the file in a musical organization and overlooking the whole symphony orchestra.” The Court further pointed to Evans v. Otis Elevator Co., 168 A.2d 573 (1963) where in Justice Jones stated:
It is not the contract per se which creates the duty; it is the law which imposes the duty because of the nature of the undertaking in the contract. If a person undertakes by contract to make periodic examinations and inspections … he should reasonably foresee that a normal and natural result of his failure to properly perform such undertaking might result in injury not only to the owner of the equipment but also to third persons …. Such principle finds support in reason, justice and precedent.
The Prost Court also referred to Justice Cardozo’s landmark opinion in MacPherson v. Buick Motor Co., 111 N.E. 1050 (1916), adding that:
No longer, when the consequences of negligence may be foreseen, does liability grow out of contract. The MacPherson case, once and for all, ‘put the source of the obligation where it ought to be’ … it ‘put its source in the law.’ … Our Supreme Court has consistently extended the principle of the MacPherson case by imposing liability also on any person who on behalf of the possessor of land negligently creates an artificial condition resulting in injury to others; and this, regardless of whether the contractor has surrendered possession of the land …
Based on the above precedential analysis, the Prost Court concluded in its case that Kaplan Company (“Kaplan”), a general contractor, was liable for injuries suffered by the plaintiff, Margaret Prost., after she slipped and fell on a pavement deficiently constructed by Kaplan. In doing so, the Court rejected Kaplan’s arguments that any liability claimed against it can only arise out of a breach of its contract with Caldwell Store, which maintained and operated said pavement. The Court simply stated that the contract between Kaplan and Caldwell Store “does not sweep away Kaplan’s non-contractual responsibility; and the fact Kaplan had completed its work and was not in possession of the premises at the time of the injury is not a bar to the prosecution of the plaintiffs' claim.”
Nearly ten years later in Felger v. Duquesne Light Co., 273 A.2d 738 (1971), the Court reaffirmed its commitment the above-mentioned principles by implicitly adopting § 383 of the Restatement (Second) of Torts, which states:
One who does an act or carries on an activity upon land on behalf of the possessor is subject to the same liability, and enjoys the same freedom from liability, for physical harm caused thereby to others upon and outside of the land as though he were the possessor of the land.
In doing so, the Court rejected as irrelevant, Duquesne Light Company’s contention that it was not the possessor of the land.
From the above, the answer to the question posed is rather straightforward – the duties owed by a property manager to a tenant are the same as that owed by the landlord to the tenant, so long as a contract exists between the landlord and the property manager to make periodic examinations and inspections and/or remove the safety issue causing the injury. A lack of privity to third parties is irrelevant because the duty arises not from the contract itself, but from the law. The contract merely establishes the nature of the undertaking in the contract. Thus, just because you don’t have a contract with the property manager, it is still liable to you if the they have a contractual obligation to the property owners that they fail to perform and it results in your injury.
