Lowe v. National Shawmut Bank of Boston

• Decision Date: 12 February 1973
• Citation: 363 Mass. 74,292 N.E.2d 683
• Parties: Betty LOWE v. NATIONAL SHAWMUT BANK OF BOSTON, executor, et al. *
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 683

292 N.E.2d 683

363 Mass. 74

Betty LOWE v. NATIONAL SHAWMUT BANK OF BOSTON, executor, et al.^*

Supreme Judicial Court of Massachusetts, Essex.

Argued Sept. 11, 1972.

Decided Feb. 12, 1973.

Salvatore J. Basile, Lawrence (Marco J. Pettoruto, Lawrence, with him), for plaintiff.

Edward R. Butterworth, Lynn (Arthur J. Palleschi, Lynn, with him), for defendants.

Before TAURO, C.J., and QUIRICO, BRAUCHER and HENNESSEY, JJ.

HENNESSEY, Justice.

This is an action of tort in which the plaintiff seeks to recover for injuries sutained when, as a result of the alleged negligence of the defendants, she slipped and fell on a common passageway owned and controlled by the defendants.

At the close of trial before a District Court judge, the defendants filed certain requests for rulings of law. Among these requests was the following: 'A finding is not warranted that the defendants failed to use reasonable care to keep the common passageways in their control in the same condition they were or appeared to be at the time of the creation of the tenancy of the Andover Thrift Shop.'

The judge denied this request and found for the plaintiff in the amount of $18,404. The judge found 'as a fact' that 'the (d)effendant(s) negligently allowed this condition to exist and failed to keep the common passageway in as safe a condition as it was at the time the tenancy began.' The defendants requested a report. The Appellate Division ruled that there was prejudicial error in the denial of the requested ruling, and entered the following order: 'Finding for the plaintiff vacated and finding entered for the defendant(s).' The plaintiff appealed.

The facts, as summarized in the report of the trial judge to the Appellate Division, are as follows: The defendants purchased the building at 26 Chestnut Street, Andover, in January, 1963. At that time, the Andover Thrift Shop was a tenant at will and became a tenant at will of the defendants. Entrance to the Andover Thrift Shop was effected by going through a door on Chestnut Street over a common passageway behind the door, about eight feet by eight feet, then down two steps onto another part of the common hallway of about the same dimensions and through the door of the Andover Thrift Shop.

At the time that the tenancy was created between the defendants and the Andover Thrift Shop, the entire hallway described above was constructed of wood planks about four inches wide. There was a space of about one-sixteenth or one-eighth of an inch between the planks. The wood floor was safe and was never slippery when wet.

Both defendants participated in the management of the building. The Andover Thrift Shop paid the rent to both the defendants. Each defendant acted for the other and in his behalf when necessary. The defendants were in control of the common passageway.

Shortly after the defendants purchased the building they remodeled it. ¹ Various changes were made. The walls were replaced. The 'old rough wood floor' in the passageway was covered with vinyl or asphalt tile--'just like the floor in the (c)ourtroom.' After the wood floor was covered with the tile it was very slippery when wet. The defendants, and their employees, were told on various occasions before the accident that the floor was in a very slippery and dangerous condition when wet. A janitor employed by the defendants was told by a tenant prior to the plaintiff's injury 'that something must be done about it or somebody would get hurt.' There was no evidence of a defect or wear or other condition not natural to the tile floor. It was raining hard on the evening of the accident at about 7 P.M. when the plaintiff entered the building. She was intending to make a purchase at the Andover Thrift Shop. She was wearing her store uniform, white hose, and white shoes that had 'low, low heels' and composition soles. She did not wear any rubbers.

The plaintiff entered the doorway and walked slowly in the hallway. She saw the water on the floor. She could not say if the water blew in when she opened the door. She carefully walked to the right, to the handrail by the two steps. She placed her hand on the handrail and proceeded to descend the two steps to the lower hallway. When she arrived on the lower hallway, she took two steps and her left foot slipped on the wet slippery tile and she landed on the floor sustaining her injuries.

1. It is clear that the defendants are at least entitled to a new trial, since the report of the trial judge reveals that he incorrectly concluded that the defendants were negligent because they 'failed to keep the common passageway in as safe a condition as it was at the time the tenancy began.' The duties of the defendants are properly measured in terms of 'reasonable care,' as in the following statement of the rule: 'The common law duty of the landlord with regard to common areas is well settled: he must use reasonable care to keep them in a good a condition as they were, or appeared to be, at the time the tenancy began.' Dolan v. Suffolk Franklin Sav. Bank, 355 Mass. 665, 667, 246 N.E.2d 798, 799; Silver v. Cushner, 300 Mass. 583, 584--585, 16 N.E.2d 27; Sneckner v. Feingold, 314 Mass. 613, 614, 51 N.E.2d 118; Mallard v. Waldman, 340 Mass. 288, 292, 163 N.E.2d 658.

2. The more difficult question is that of determining whether the Appellate Division was correct in its ruling that a finding is required for the defendants. Clearly a finding was warranted that the tile floor was not as safe to walk upon, when wet, as was the wooden floor which existed at the time the tenancy began. A finding was also warranted that the defendants had sufficient notice of the danger before the plaintiff's injury to enable them to take remedial measures.

Even though the tile floor was...