dissenting.
I dissent.
In Kolojeski v. John Deisher, Inc., 429 Pa. 191, 239 A.2d 329 (1968), the supreme court decided that a landlord could not be held liable for his tenant’s lead paint induced injuries, where the landlord had no prior actual or constructive notice of the dangerous condition. In doing so, the court stated that “[w]ere we to conclude otherwise, we would be required to ascribe to [the defendant-lessors] a knowledge and expertise not ascribable, at least at the time of this incident, to people without special training or experience.” 429 Pa. at 195, 239 A.2d at 330-31 (emphasis added).
The Kolojeskis’ child died from' lead paint poisoning almost thirty years ago, in 1966. Id. at 193, 239 A.2d at 330. The Kolojeski court left the door open for the possibility that, at some point in the future, the knowledge of the dangers of lead paint poisoning indeed would be “ascribable ... to people without special training and experience.” Id. at 195, 239 A.2d at 331.
*489The trial court, although constrained by the holding in Kolojeski, obviously thought that this issue should be revisited:
[S]ince the 1968 decision the whole world has become aware of the dangers of lead paint as a matter of common knowledge and the courts can’t say we don’t know anything about that, especially a judge sitting in code enforcement court knowing that you can close down a place for lead paint violations.
R. 123a. After granting summary judgment against the plaintiffs, the trial judge frankly urged them to file an appeal so that an appellate court would have the opportunity to review the matter. R. 134a.
The lessor in this case purchased the subject property in 1964. Shakeema Felton’s grandmother rented the premises in 1986, and the child’s exposure to the lead paint on its walls apparently occurred around May 1989. After the lead poisoning was diagnosed, the City of Philadelphia tested the leased premises, and the presence of lead was detected; the lead paint then was removed.
The parties have conceded that the defendant-lessor did not have actual notice of the presence of lead-based paint on the property. However, even the Kolojeski court, in 1968, could take judicial notice “that the use of such paint is common and widespread.” Id. at 195, 239 A.2d at 331. Moreover, as early as 1966, the City of Philadelphia had recognized the dangers of lead based paint. Philadelphia Code § 6-403. The current ordinance provides that:
No person shall permit lead based coating to remain on any toy, furniture, food utensil, household product or the exteri- or or interior surfaces, fixtures or appurtenances of any dwelling, rooming house, dwelling unit, rooming unit, institution or similar type facility where the surface may be readily accessible to children under the age of six years and where the Department [of Public Health] determines that the presence of lead based coating creates a health hazard to children under the age of six.
*490Philadelphia Code § 6-403(2)(d) (as amended 1977).1 The same ordinance provides a procedure through which the “Department of Public Health, upon application by any owner or person in control of a premises, shall test or cause to be tested said premises to determine the presence of lead based coating.” § 6-403(4)(a). The existence of a similar ordinance previously has led to a finding that the defendant lessor “should have known that the paint on the walls of [plaintiff’s] apartment contained lead which might be harmful to the occupants of the apartment.” Acosta v. Irdank Realty Corp., 38 Misc.2d 859, 238 N.Y.S.2d 713, 714 (1963).
In addition, by 1970, the Federal government had enacted the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. § 4821 et seq.). At least part of the Act’s purpose was to increase public awareness of the dangers of lead paint poisoning. Senate Report No. 91-1432, U.S.Code Cong. & Admin.News p. 6130 (December 17, 30, 1970).2
I believe that by the time the incidents in this action took place, the defendant-lessor had reason to know of the existence and dangers of lead-based paint in residential spaces, especially where there are young children present. Section *491358 of the Restatement (Second) of Torts, provides in pertinent part:
(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if
(a) the lessee does not know or have reason to know of the condition or the risk involved, and
(b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.
Restatement (Second) of Torts § 358(1). The comment to § 358 explains that constructive knowledge of a dangerous condition should be imputed to the lessor when “he has information from which a person of reasonable intelligence, or of his own superior intelligence, would infer that the condition exists ... and in addition would realize that its existence will involve an unreasonable risk of physical harm.” § 358 comment b. “It is enough that [the defendant] had reason to know.” Id.
The increased general awareness of the dangers of lead paint poisoning gives rise to a certain duty on the part of a lessor. The need to impose such a duty is even more compelling when we consider the foreseeability of injury to young children when lead paint chips are accessible. See Norwood v. Lazarus, 634 S.W.2d 584, 587 (Mo.App.1982) (“It is well known that children of tender years have a proclivity to put anything they can get into their hands into their mouths.”); Acosta v. Irdank Realty Corp., 38 Misc.2d at 860, 238 N.Y.S.2d at 714 (“That small children go around the house picking up *492everything within their reach and placing it in their mouths and attempting to eat it is well known.”).3
It is not unreasonable to expect that by 1989, when Shakeema Felton was injured by the lead-based paint in the appellee’s property, a lessor should have been sufficiently aware of the existence and dangers of lead-based paint to at least have the premises tested. Furthermore, in the event that reasonable testing efforts are made, and lead paint is discovered, the condition should be abated. I believe that a landlord, who rents property for profit, owes the duty of testing and abatement to his or her tenants.
The majority presumes that imputing this awareness to landlords automatically leads to strict liability of defendant-lessors whenever lead paint-related injuries occur. I disagree. Defendant-lessors should be permitted to proffer evidence that they caused the subject premises to be tested for lead-based paint after they came into possession, and corrected any defects discovered. If, at that time, the property was pronounced to be lead-free, evidence to that effect also would be probative. In addition, the lessor could prove that where lead paint once was removed, all subsequent coats of paint had no more than the legally permissible levels of lead.
Finally, the majority makes the point that, in the event that a lessor is held to have constructive knowledge of the existence and dangers of lead paint, the tenant also must be held to have such knowledge. Majority Opinion at 488. I do not think that a lessee of residential premises should be held to the same standard as a landlord, who essentially is in the *493property rental business. The lessor usually has more control over the risk-creating defect than does the lessee, and if this is not so in a particular case, the lessor may defend on such grounds. Although some measure of comparative negligence may be applicable under certain circumstances, it is my opinion that a lessee should be entitled to assume that a lessor, by this point in time, would have discovered and abated any lead-related defects that may have existed on the property.4 Where, as in this case, a child has been injured by the consumption of lead paint chips which have been allowed by the lessor to remain on the property, a presumption of negligence should arise, and that presumption may be rebutted by evidence of the defendant-lessor’s reasonable efforts to discover and abate the dangerous condition.
I would reverse the grant of summary judgment, and require the defendant-lessor to put on proof of any reasonable effort made to discover and abate the lead-paint related defect.
. The majority make much of the fact that this code section, though apparently enacted in 1966, was not discussed in the Kolojeski decision. However, we note that the current language of § 6-403(2)(d) was not passed until 1977. The relevant code section, as enacted on March 11, 1966, read only as follows:
(2) Prohibited Conduct.
(a) No person shall apply lead paint to toys, furniture or the interior surfaces of any dwelling, rooming house, dwelling unit, rooming unit or facility occupied or used by children.
(b) No persons shall sell, transfer or deliver toys or furniture to which lead paint has been applied.
Philadelphia Code § 6-403(2). It may well be that the code section was inapplicable to the facts in Kolojeski, or even that the ordinance was too new to be considered by the court.
Nonetheless, the issue is not whether the lessor should be held liable for a violation of the ordinance, but that its existence shows that the lessor should have known that the presence of lead was dangerous, and therefore prohibited by law.
. Although the Act was aimed at federally-funded housing, its enactment indicates that the problems associated with lead-based paint poisoning were widespread and required national and local attention.
. This reasoning is not unlike that behind the "attractive nuisance" doctrine, which provides that a possessor of land is liable for "bodily harm to trespassing children of tender years caused by a structure or other artificial condition” maintained on the land, which the possessor knows or should know that children, “because of their natural impulses and instincts,” are "likely to trespass upon without discovering the condition or realizing the risk involved,” and where the utility of maintaining the condition is slight compared with the risk to the children. Krepcho v. Erie, 145 Pa.Super. 417, 420, 21 A.2d 461 (1941). See also Restatement (Second) of Torts § 339, "Artificial Conditions Highly Dangerous to Trespassing Children” (1965) (requiring also that possessor of land exercise reasonable care to eliminate the danger or otherwise protect the children); Jesko v. Turk, 421 Pa. 434, 219 A.2d 591 (1966) (adopting Restatement § 339).
. Professor Keeton has described a growing "[djiscontent with the appearance of unfairness in the landlord’s general immunity from tort liability,” and an increasing willingness by some courts to impose on the lessor a general tort duty of reasonable care. Prosser and Keeton on The Law of Torts § 63, p. 446 (5th Ed. 1984).