Zavalney v. Donovan

NOURSE, P. J.

In February, 1941, plaintiff and her two sisters rented a furnished apartment on a monthly basis from defendants. On moving in plaintiff noticed a crack in the porcelain handle of the hot water faucet of the bathtub. In January, 1942, plaintiff suffered a cut in her hand when the handle splintered as she attempted to shut off the water. She has framed her complaint in two causes of action—one based upon alleged negligent repairs by defendants, the other based upon the defendants' alleged knowledge of the defective condition of the faucet handle at the time of renting and their fraudulent concealment of that fact from the plaintiff. No evidence was offered in support of the first cause of action and plaintiff’s testimony required an abandonment of that issue. At the close of plaintiff’s case defendants’ motion for a nonsuit was granted and the appeal is from the judgment following:

A brief statement of the facts is sufficient. At the outset of her tenancy plaintiff noticed that the handle of the hot water faucet was cracked and continued to use it for eleven months without complaint. There is no evidence that either defendant had knowledge of that condition at the time the premises were let. There is testimony given by the plain

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tiff that, at the time her injury, Mr. Donovan told her that “it was one of those old cracked faucet handles that he had intended to replace.” Whether he implied knowledge of the condition of this particular handle from the fact of the injury or from previous observation or information does not appear. There is no evidence that either defendant made or attempted to make any repairs to the handle or in or about the bathroom. The evidence is that the handle was constructed of white porcelain, that the crack had turned brown, or a dark color, and was plainly visible to any one using the bathtub; that plaintiff and her sisters used the tub daily, and plaintiff saw that the handle was cracked, whereas there was no evidence that either defendant inspected the bathroom at anytime during the eleven months tenancy, or had been informed of any defect, other than that the faucet leaked. Appellant labors the point that the respondents admitted frankly and honestly that they knew that a broken handle was a source of danger, whereas she was led to testify that she had no knowledge of the danger—a matter of common knowledge like the knowledge that cracked and broken glassware may cut or injure a hand under pressure.