Pennsylvania courts repeatedly have recognized the validity of the principles set forth in Restatement (Second) of Torts §§ 355-362 governing the liability of lessors to persons who enter upon that land. See Leary v. Lawrence Sales Corp., 442 Pa. 389, 275 A.2d 32 (1971); Deeter v. Dull, 420 Pa. Super. 576, 617 A.2d 336 (1992); Kobylinski v. Hipps, 359 Pa. Super. 549, 519 A.2d 488 (1986). Section 360 in particular responds to situations in which a person is injured in an area the control of which has been retained by the lessor.
Accordingly, York–Adams was not merely owner of the property, it also exercised possession and control, and therefore cannot be considered a landlord “out of possession” with no duty for injuries incurred by third parties on its leased premises. See, e.g., Dorsey v. Continental Associates, 404 Pa.Super. 525, 591 A.2d 716, 718 (Pa.Super.Ct.1991); Kobylinski v. Hipps, 359 Pa.Super. 549, 519 A.2d 488, 491 (Pa.Super.Ct.1986); Henze v. Texaco, Inc., 352 Pa.Super. 538, 508 A.2d 1200, 1202 (Pa.Super.Ct.1986) (citing, inter alia,Restatement (Second) of Torts § 356 (1965)). Liability attaches if a landlord has “retained control over a portion of the property which is necessary to the safe use of the leased property.”
As a general rule, a landlord out of possession is not responsible for injuries suffered by third parties on leased premises. Kobylinski v. Hipps, 519 A.2d 488, 490-91 (Pa.Super.Ct. 1986). However, liability may attach if a landlord has "retained control over a portion of the property which is necessary to the safe use of the leased property."
Id., 352 Pa. Super. at 546-47, 508 A.2d at 1205. Shortly thereafter, this Court decided the factually similar case of Kobylinski v. Hipps, 359 Pa. Super. 549, 519 A.2d 488 (1986). That case involved a wrongful death and survival action brought by the executrix of the estate of the decedent, who had fallen to his death in an unguarded exterior stairwell attached to a residence owned by appellant and leased to appellee.
Burch v. Sears,Roebuck and Co., 320 Pa. Super. 444, 449, 467 A.2d 615, 618 (1983). If, however, the law does not permit recovery upon the alleged facts on which the jury may justifiably have found, a judgment n.o.v. should be granted. Kobylinski v. Hipps, 359 Pa. Super. 549, 553, 519 A.2d 488, 490 (1986); Henze v. Texaco,Inc., 352 Pa. Super. 538, 541, 508 A.2d 1200, 1202 (1986). The elements necessary to plead an action in negligence are: (1) the existence of a duty or obligation recognized by law; (2) a failure on the part of the defendant to conform to that duty, or breach thereof; (3) a causal connection between the defendant's breach and the resulting injury; and (4) actual loss or damage suffered by the complainant.
The trial court of course was aware of the rule that a landlord out of possession, in most instances, is not liable for bodily harm to the lessee or others by a dangerous condition that the lessee knew or should have known to exist. Kobylinski v. Hipps, 359 Pa. Super. 549 519 A.2d 488 (1986). In the absence of proof of some exception such as a lessor's contracting to repair or retaining possession of part of the leased premises, of which there was no hint in the record, there was no basis for the trial court to impose liability upon the lessor City. Id.; see generally Restatement (Second) of Torts §§ 356 — 362 (1965).
Generally, a landlord out of possession cannot be held liable for injuries incurred by third parties on the leased premises because the landlord does not owe them a duty of care. Kobylinski v. Hipps, 519 A.2d 488, 491 (Pa. Super. Ct. 1986); Henze v. Texaco, Inc., 508 A.2d 1200, 1202 (Pa. Super. Ct. 1986) (internal citations omitted). The reason is that the law views a lease as “the equivalent of a sale of the land for the term of the lease.
However, in both of those cases, responsibility for maintenance and repairs rested with the tenant. See Parquet v. Blahunka, 84 A.2d 187, 188 (Pa. 1951) ("Under the terms of the lease, the tenants were given exclusive possession and covenanted to make all necessary repairs."); Kobylinksi v. Hipps, 519 A.2d 488, 491 (Pa. Super. Ct. 1986) ("[T]here was no testimony to the effect that Appellant, as landlord, covenanted to make any major repairs to the building throughout the leasehold period."). The results in those cases would not apply to a case where the landlord had responsibility for making repairs and therefore retained control over the leased premises.
Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006) (citations omitted). To prevail against the Stahls, Plaintiffs would have had to prove that the Stahls were aware of problems in the home, promised to fix the problems, and failed to do so or did so negligently. Kobylinski v. Hipps, 519 A.2d 488, 491 (Pa. Super. Ct. 1986). To prevail against the Artur Defendants, Plaintiffs would have had to prove that they attempted to provide services to Plaintiffs; that they recognized that those services were necessary for the protection of Plaintiffs' themselves or their things; that they failed to act with reasonable care in performing those services; and that their negligent acts increased the risk of harm to Plaintiffs.
Moreover, under Pennsylvania law, a tenant has the sole and exclusive possession of the leased portion of the property. Bleam v. Gateway Professional Ctr. Assoc., 636 A.2d 172, 175 (Pa. Super. Ct. 1994); Kobylinski v. Schmidt, 519 A.2d 488, 491 (Pa. Super. Ct. 1986) (citing Pierce v. Phila. Housing Auth., 486 A.2d 1004, 1005 (1995)). A landlord cannot consent to a search of a leased premises.