concurring in part and dissenting in part.
I generally agree with the majority’s analysis and discussion of the doctrine of res ipsa loquitur. However, I have difficulty with its analyses of the plaintiff’s claim and the defense. The majority implicitly assumes that the defendant must prove that a reasonable inspection would not have uncovered the defect. The burden, however, is on the plaintiff to prove that the defendant violated its duty to make such an inspection and that that inspection would have revealed the dangerous condition. The plaintiff contended and the defendant conceded that the stairs were improperly installed. The plaintiff offered no proof that the defect would have been discoverable by the defendant upon a reasonable inspection. The defendant’s uncontradicted *298proofs were that the defective condition was latent and not discoverable upon a reasonable inspection.
The stairway led from the ground to the second floor. Constructed of wood, it was supported by a wall on one side and a banister on the other. There were approximately 10 steps. The backs of the steps were open, that is, there were no risers. The plaintiffs observed immediately after the collapse that the stairway had been affixed to the wall by tiny nails that protruded about one-half to one inch from the beam to which each step was attached. It was not possible to see from a visual inspection how the stairway was affixed to the wall.
The majority suggests that if the jury were to find that the defendant would not have discovered the defective installation by a reasonable inspection, 95 N.J. 293, then any inference of negligence under the doctrine of res ipsa loquitur would have been dissipated and a verdict would have to be entered in favor of the defendant. That result diminishes the duty that I believe is owed by a proprietor of business premises to those who enter upon the owner’s invitation.
The “proprietor of premises, to which the public is invited for business purposes of the proprietor, owes a duty to exercise reasonable care to see that one who enters his premises upon that invitation has a reasonably safe place to do that which is within the scope of the invitation.” Brody v. Albert Lifson & Sons, Inc., 17 N.J. 383, 389 (1955); see also Butler v. Acme Markets, Inc., 89 N.J. 270, 275-76 (1982); Phillips v. Library Co., 55 N.J.L. 307 (E. & A. 1893).
That duty should extend to situations where the negligent act creating the dangerous condition was caused by the defendant’s predecessor in title. The defendant has acquired the title and with it assumed the predecessor’s responsibility to a third person for the dangerous condition.
Vicarious liability has been recognized in analogous situations. All would agree that if instead of a deed defendant had acquired ownership through acquisition of all the predecessor’s outstand*299ing capital stock, liability for the negligently created condition would exist. Cf. Globe Industrial Loan Corp. v. Steinberg, 14 N.J.Misc. 541 (Sup.Ct.1936) (mere change of corporate name of a company does not prevent it from collecting on loans made under former corporate name). See generally 6 Fletcher, Cyclopedia of the Law of Private Corporations (rev. perm. ed. 1979), § 2456 at 217. No reason justifies treating a successor differently simply because of the form of the transaction.
Similarly, if the defendant had engaged an independent contractor to erect the building, the defendant could not escape responsibility to the plaintiff on the theory that the defect due to the contractor’s negligence was not reasonably discoverable. The rule is stated in Restatement (Second) of Torts, § 422 at 405 (1965):
A possessor of land who entrusts to an independent contractor construction, repair, or other work on the land, or on a building or other structure upon it, is subject to the same liability as though he had retained the work in his own hands to others on or outside the land for physical harm caused to them by the unsafe condition of the structure
(a) while the possessor has retained possession of the land during the progress of the work, or
(b) after he has resumed possession of the land upon its completion.
An illustration to section 422 states that the owner, once he resumes possession of the premises, is liable to a third party for harm caused by construction negligently done by an independent contractor. Id., comment c, illustration 3. This view accords with traditional notions that an owner cannot escape liability by contracting away his duty to exercise reasonable care to provide premises reasonably safe for his invitees. See Mayer v. Fairlawn Jewish Center, 38 N.J. 549, 555 (1962). But see Reisman v. Public Service Corp., 82 N.J.L. 464 (E. & A.1911); Sebeck v. Plattdeutsche Volkfest Verein, 64 N.J.L. 624 (E. & A.1900) (amusement park operators who arrange for independent contractors to give a fireworks display are not liable for negligence of contractors). The owner does not escape responsibility because it lacked control over the contractor or relied on the contractor’s expertise. This liability exists irrespective of any *300negligence on the part of the owner. The contractor’s negligence is vicariously attributable to the owner. Although I would not limit liability to this situation, it may be noted that the defendant here acquired ownership during the construction and completed the building. It was mere happenstance that the stairway had been finished — it had been built by a subcontractor of the prior owner, T. Harry Lang and Associates — when the defendant acquired title and finished the construction. Therefore, it would not be unreasonable to place the defendant in the status of the owner during the entire construction.
Finally, the situation at bar is somewhat analogous to the strict tort liability of a successor corporation for damages caused by latent defects in products manufactured and distributed by its predecessor. See Ramirez v. Amsted Industries, Inc., 86 N.J. 332 (1981). In the product liability case the successor entity that never had control over the defective product is nevertheless responsible. Here, in contrast, the current owner of the real property has control over the premises and has a direct relationship to the plaintiff who has encountered the hazardous condition upon accepting the owner’s invitation to enter the premises. If policy justifies liability in the product field, why is not the business invitee entitled to at least similar protection? I envision no justification for the difference. Cf. Ursin, “Strict Liability for Defective Business Premises — One Step Beyond Rowland and Greenman,” 22 U.C.L.A.L.Rev. 820, 827-28 (1975) (advocating that a strict liability duty to patrons should be applied to the owners of business premises).
A successor owner should stand in the shoes of its predecessor with respect to the owner’s duty of exercising reasonable care to furnish a reasonably safe place to the business invitee. Once the successor takes control of the premises, it should be liable to its business invitees not only for its own failure to exercise reasonable care to make the premises reasonably safe, but also for its predecessor’s negligence that caused the premises not to be reasonably safe for the present owner’s business invitees.
*301The defendant places substantial reliance for its position upon Dwyer v. Skyline Apartments, Inc., 123 N.J.Super. 48 (App.Div.), aff’d o.b., 63 N.J. 577 (1973). There the plaintiff, a tenant for 15 years in a multi-family garden apartment, sued the landlord for injuries when a hot water faucet in the apartment broke. Judgment for the plaintiff was reversed by the Appellate Division since the landlord had no actual or constructive notice of the condition. Id. at 52. The case is inapposite. The landlord did not create or maintain the dangerous condition. Neither it nor its predecessor in title had any control over the faucet at the time of the accident or when the faucet became defective. Interestingly, the Dwyer court, citing Marini v. Ireland, 56 N.J. 130 (1970), did observe that a landlord is held to an implied covenant of habitability against latent defects, including those caused by faulty original construction, that presumably would not have been apparent upon reasonable inspection. 123 N.J.Super. at 53.
The defendant’s proposition that a property owner can be held liable only for a condition of which he has actual or constructive notice may be true in other contexts. This is generally true where the negligent conduct causing the condition is that of a third person unrelated to the defendant. See Thompson v. Giant Tiger Corp., 118 N.J.L. 10, 13 (E. & A.1937). Notice is not a factor when the defendant property owner, its servant, agent or employee creates the hazardous condition. See Bozza v. Vornado, Inc., 42 N.J. 355, 360 (1964).
In advancing the proposition that a successor owner should be responsible to its business invitees for a hazardous structural condition created by a predecessor, I would disapprove of those cases, e.g., Dombrowska v. Kresge-Newark, Inc., 75 N.J.Super. 271 (App.Div.1962); Francisco v. Miller, 14 N.J.Super. 290, 296-97 (App.Div.1951) (none of which are decisions of this Court or the Court of Errors and Appeals), that hold the owner and possessor is not under a duty to render premises reasonably safe to its invitees when the hazardous structural condition is latent, unknown, and not reasonably discoverable upon inspection. As *302between the business proprietor and the innocent invited patron injured as a result of a dangerous structural condition on the premises, equities favor imposing the costs attributable to the injury on the owner. The owner is in a position to correct defective conditions and to spread these costs through a liability insurance policy and in the pricing of its goods or services. Furthermore, the owner in most situations may bargain in the purchase contract to shift this monetary responsibility to its predecessor in title, which may, as in the instant case, have been the actual wrongdoer.
Though the plaintiff did not raise this precise theory of liability on appeal, it is an inherent and essential element of the cause. In all probability, it will be a question with which the trial court will be faced on the retrial. Accordingly, I submit the answer should be given now (after giving the parties an opportunity to submit supplemental briefs), so that the litigation will be finally concluded and the possible delay and costs of a second appeal obviated.
Justice O’HERN joins in this opinion.