Campbell v. Romanos

• Citation: 346 Mass. 361,191 N.E.2d 764
• Parties: Shirley CAMPBELL v. George M. ROMANOS, Jr., et al. Benjamin CAMPBELL et al. v. George M. ROMANOS, Jr., et al. Stephen CAMPBELL et al. v. George M. ROMANOS, Jr., et al. Shirley CAMPBELL, Administratrix, v. George M. ROMANOS, Jr., et al.
• Decision Date: 05 July 1963
• Court: United States State Supreme Judicial Court of Massachusetts

Page 764

191 N.E.2d 764

346 Mass. 361

Shirley CAMPBELL v. George M. ROMANOS, Jr., et al.

Benjamin CAMPBELL et al. v. George M. ROMANOS, Jr., et al.

Stephen CAMPBELL et al. v. George M. ROMANOS, Jr., et al.

Shirley CAMPBELL, Administratrix, v. George M. ROMANOS, Jr., et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 7, 1963.

Decided July 5, 1963.

Joseph J. Hurley and Thomas E. Cargill, Jr., Boston, for plaintiffs.

Morris Michelson, Boston, Jerrold A. Olanoff, Swampscott, for defendants.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and REARDON, JJ.

KIRK, Justice.

These are actions of tort based on negligence for personal injuries to Mrs. Shirley Campbell and to her children, Benjamin and Stephen, and for the conscious suffering and death of her child Patricia in a fire on February 18, 1958, in an apartment building owned by the defendant Romanos at 561 Columbus Avenue, Boston, where Mrs. Campbell was a tenant. The other defendant, Walker, was the janitor of the building at and before the time of the fire. There were verdicts for the plaintiffs on all counts which were submitted to the jury. The case comes to us on the defendants' exceptions to the denial of motions for directed verdicts, to rulings on evidence, and to certain instructions given to the jury.

We summarize the evidence in the aspect most favorable to the plaintiffs. Howes v. Kelman, 326 Mass. 696, 697, 96 N.E.2d 394. Mrs. Campbell became a tenant of Romanos on January 2, 1958. Altogether there were nine apartments in the building. The Campbells occupied the front apartment of the two on the top or fifth floor. The stairs and hallways were neat and clean when they moved in. Mrs. Campbell did not see Romanos when she made her first rental payment at his office. Walker told her when the tenancy began to put her trash in the hall outside her door and he would pick it up. (This statement was limited to the defendant Walker.) Other tenants on other floors of the building put their trash out in the hallways and it was regularly and routinely collected, on a daily basis, by Walker. Romanos testified that the hallways of the building were common passageways and that his instructions to Walker were to take care of the property and keep it clean. He was familiar with Walker's routine in removing rubbish from the hallways. He knew that Walker started at the top of the building with a large folding canvas bag, collected the rubbish, proceeded to the floors below, and finally emptied the trash in barrels outside the building. One Steeves who actively managed this building for Romanos testified that it was Walker's job to remove refuse and garbage regularly. Walker himself described the regularity of his procedure in collecting rubbish in all of the hallways.

There was evidence that commencing two weeks before the fire the rubbish was not collected regularly and that there then began an accumulation of stacked newspapers, rags, shoes, and paint cans at the rear of the first floor hallway underneath the stairs. Romanos told Walker to remove the stuff; but he did not do it and the material was still there at 6 P.M. on the evening of the fire. Adjacent to this accumulated material there was an unused elevator shaft. One panel of the door to the shaft was covered with a sheet of tin to replace a broken glass pane. The tin occasionally was pulled away from the door, and had to be put back in place. On the day of the fire Walker noticed that the tin was pulled away from the door. About a week before the fire there were greasy cartons and papers and cans stacked in front of the door of the apartment at the rear of the fifth floor.

At 9:15 P.M. on February 18, 1958, Mrs. Campbell while in her apartment heard a commotion and went to the door with Stephen and Patricia. There was intense heat. She tried to go down the stairway, but the trash on the fifth floor 'exploded,' causing flames to leap up and block the exit. She pushed the children back into the apartment and shut the door. The flames had touched Patricia's hair. The lights went out. All survived except Patricia who was found dead in the apartment by a fireman. In the opinion of the district fire chief the fire had started in the rubbish in the first floor hallway and the accumulation of trash had extended and intensified the fire. When the chief arrived at the scene the fire extended to the fourth floor but had not yet reached the fifth floor. Soon after his arrival there was a 'hot air explosion' as the flames broke through to the fifth floor.

We first consider the defendants' motions for directed verdicts. In doing so we do not apply to the case, as argued by the plaintiffs, the general rule 'that a person in exclusive control and possession of a building or of a part thereof is required to exercise reasonable care to keep it in such condition that others will not be injured in their persons or property.' Gilroy v. Badger, 301 Mass. 494, 496, 17 N.E.2d 702, 703. This is not the rule which determines the rights of a tenant and the correlative duty owed to him by a landlord with respect to common passageways. Regan v. Nelson, Mass., 189 N.E.2d 516. ¹ 'With respect to common areas used by tenants over which the landlord retains control, the landlord owes to his tenants 'the duty to use reasonable care to keep the common areas in as good a condition as that in which they were or appeared to be at the time of the creation of the tenancy.' Goodman v. Smith, 340 Mass. 336, 338, 164 N.E.2d 130, 131.' Crea v. Stunzenas, 344 Mass. 265, 267, 182 N.E.2d 141, 142, and cases cited. Marion v. Bryson, 326 Mass. 618, 619, 96 N.E.2d 165. The duty is concerned with the condition of the premises themselves with relation to their condition when the tenancy began. 'There is at common law, in the absence of special agreement, no duty on the part of a landlord to see that articles not part of the building are not left on common stairways by persons other than himself or his agents or employees.' Richmond v. Warren Inst. for Sav., 307 Mass. 483, 486, 30 N.E.2d 407, 408, 132 A.L.R. 859, and cases cited. Bacon v. Jaques, 312 Mass. 371, 373, 44 N.E.2d 648. Hebb v. Gould, 314 Mass. 10, 14-15, 49 N.E.2d 450. Vaillancourt v. Rex Realty Corp., 326 Mass. 534, 535-536, 95 N.E.2d 650.

We are called upon to determine, in the light of the foregoing principles, if there is "* * * anywhere in the entire evidence any set of circumstances that will support a reasonable inference in favor of the plaintiff.' Mazzaferro v. Dupuis, 321 Mass. 718, 719, 75 N.E.2d 503, 504.' Donnelly v. Larkin, 327 Mass. 287, 289, 98 N.E.2d 280, 282, 25 A.L.R.2d 487, and cases cited. We think that the evidence presents a question of fact as to whether Remanos had assumed a duty by the terms of the letting to remove rubbish from the shairs and hallways, which he negligently performed, and was therefore liable to a tenant, or one who has the same rights as a tenant, Carey v. Malley, 327 Mass. 189, 194, 97 N.E.2d 645, who suffered injury as a result. Miller v. Berk, 328 Mass. 393, 396, 104 N.E.2d 163, and cases cited. On the question as to the existence of an agreement to remove the rubbish as part of the terms of the letting, the case falls within the group represented by Gallagher v. Murphy, 221 Mass. 363, 108 N.E. 1081 (maintenance of light), Erickson v. Buckley, 230 Mass. 467, 120 N.E. 126 (removal of snow and ice), Carey v. Malley, 327 Mass. 189, 97 N.E.2d 645 (removal of snow and ice), Donnelly v. Larkin, 327 Mass. 287, 98 N.E.2d 280, 25 A.L.R.2d 487 (maintenance of light), and Sullivan v. Hamacher, 339 Mass. 190, 158 N.E.2d 301. It does not in our judgment come within the group of distinguishable cases collected in Hebb v. Gould, 314 Mass. 10, 15, 49 N.E.2d 450. The test in ...