Young v. Garwacki

• Decision Date: 19 March 1980
• Citation: 402 N.E.2d 1045,380 Mass. 162
• Parties: Carroll Elizabeth YOUNG v. Mitchell GARWACKI et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1045

402 N.E.2d 1045

380 Mass. 162

Carroll Elizabeth YOUNG v. Mitchell GARWACKI et al.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Dec. 3, 1979.

Decided March 19, 1980.

Thomas A. Kenefick, III, Springfield, for plaintiff.

Susan C. Cohen, Springfield and James H. Wexler, Dorchester, for Housing Allowance Project, Inc., & another, amici curiae, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, WILKINS, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

On August 3, 1977, the plaintiff Young commenced this action in the Superior Court for Hampden County against the defendants Garwacki (tenant) and Kenneth N. LaFreniere (landlord). The complaint stated two counts of negligence, one against the tenant and the other against the landlord, in which Young sought damages for personal injuries sustained in a fall from the second-story front porch of the tenant's apartment. Young alleged that she was lawfully on the premises and that the railing had been negligently maintained. The case was tried to a jury which found for the plaintiff on both counts and returned answers to special questions on September 21, 1978. Mass.R.Civ.P. 49(a), 365 Mass. 812 (1974). The landlord then filed a motion for judgment notwithstanding the verdict. Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974). On September 28, the trial judge filed a memorandum and order. He entered judgment for Young against the tenant for $20,000; no appeal has been taken by the tenant. On October 3, he allowed the landlord's motion for judgment notwithstanding the verdict. The plaintiff filed notice of appeal. On January 26, 1979, the judge reported the case against the landlord to the Appeals Court. Mass.R.Civ.P. 64, 365 Mass. 831 (1974). We brought the case here on our own motion. We reverse.

The facts as stated in the judge's report show the following. The accident occurred on the landlord's property at 7 Park Street in Westfield. Garwacki rented the house's second-floor apartment as a tenant at will. One Larry Mastello shared the apartment with him. Mastello invited Young, a friend of both men, to a dinner party on April 21, 1977. She arrived before the other guests and began preparing the dinner. On his way to pick up a friend, Mastello went down to his car which was parked in a driveway near the front of the house. Young went to the front porch to ask him to pick up some groceries on his way back. When she placed her hands on the railing and leaned forward to call down to Mastello, the railing gave way. She fell to the ground and was injured.

In December, 1976, the landlord's insurance company had informed him that the railing was dangerous and had cancelled his liability insurance. At that time, the landlord warned the tenant of the danger and bought materials to repair the railing, but he made no repairs.

According to the judge's report, the landlord had made no express agreement to keep the premises in repair, although he testified he considered it his obligation to repair the porch railing. Furthermore, the porch, which was accessible only from the tenant's living room, was part of the demised premises, not under the landlord's control. In answer to the judge's special questions, the jury found that the landlord did not exercise reasonable care in his maintenance of the premises, that his negligence was the proximate cause of the plaintiff's injuries, and that she was not at all negligent herself. ¹

Thus, this case presents a question we have reserved before. DiMirzo v. S. & P. Realty Corp., 364 Mass. 510, 514, 306 N.E.2d 432 (1974). See Markarian v. Simonian, 373 Mass. 669, ^a 369 N.E.2d 718 (1977). In the absence of the landlord's express agreement to keep the rented premises in repair, is he liable to his tenant's guest for injuries resulting from his negligent failure to maintain the safety of the premises?

Common law rules defining a landowner's liability in negligence to people coming onto the land reflected the needs of an agrarian society. The landowner was a petty sovereign within his boundaries. The character of his duty to an injured party varied with the party's relationship with the sovereign. Mounsey v. Ellard, 363 Mass. 693, 695, 297 N.E.2d 43 (1973). Thus, the common law distinguished several classes of tort plaintiffs; among them, trespassers, licensees, invitees, and tenants.

The traditional approach to tenants turned on the concept of a lease as a conveyance of property. The tenant "bought" the leasehold at his peril, so he could not expect the landlord to have repaired preexisting defects, and at the time of the letting, the landlord ceded to the tenant his dominion over the rented premises. Under this ancient view, the axiom was "there is no law against letting a tumbledown house." Robbins v. Jones, 15 C.B. (N.S.) 221, 240, 143 Eng.Rep. 768, 776 (1863). The landlord might have been liable for negligent maintenance of common areas, but was not generally liable for the negligent maintenance of the premises themselves. See generally, Restatement (Second) of Property Landlord & Tenant c. 17, Introductory Note & § 17.3 (1977); 2 R. Powell, Real Property § 233 (at 330.69-330-70); § 234(2)(b) (P. Rohan 1977).

The landlord "was under a separate and limited duty toward each tenant and that tenant's visitors to exercise reasonable care to maintain the common areas in a condition not less safe than they were, or appeared to be in, at the time of the letting to the particular tenant." King v. G & M Realty Corp., 373 Mass. 658, 660 ^b, 370 N.E.2d 413, 414 (1977); Lindsey v. Massios, 372 Mass. 79, 81-82, 360 N.E.2d 631 (1977). As to the demised premises, caveat emptor reigned. The tenant took the premises as he found them. See Gade v. National Creamery Co., 324 Mass. 515, 518, 87 N.E.2d 180 (1949). "The general rule is that the landlord is not liable to the tenant for defects in the premises existing at the time of the letting unless they are hidden defects of which he is aware and does not warn the tenant." Ackarey v. Carbonaro, 320 Mass. 537, 539, 70 N.E.2d 418, 419-420 (1946). The defect had to be one that was not discoverable by the tenant. Cooper v. Boston Hous. Auth., 342 Mass. 38, 40, 172 N.E.2d 117 (1961). ² We set out the remaining rules in DiMarzo v. S. & P. Realty Corp., supra at 513, 306 N.E.2d 432. As we stated in DiMarzo, during the term of the rental, "there could be no tort liability for nonfeasance in the absence of an agreement, for consideration, that the landlord would keep the premises in a condition of safety, and make all repairs without notice. Fiorntino v. Mason, 233 Mass. 451, 124 N.E. 283 (1919); Jacovides v. Chaletzky, 332 Mass. 225, 124 N.E.2d 259 (1955); Bushfan v. Gluck, 339 Mass. 772, 158 N.E.2d 132 (1959); Schopen v. Rando, 343 Mass. 529, 179 N.E.2d 822 (1962); Long v. Russell, 344 Mass. 758, 183 N.E.2d 294 (1962). Gratuitous repair creates tort liability only if it is done in a grossly negligent fashion. Bergeron v. Forest, 233 Mass. 392, 124 N.E. 74 (1919); Barrett v. Wood Realty Inc., 334 Mass. 370, 135 N.E.2d 660 (1956); Popowych v. Poorvu, (361) Mass. (848), 279 N.E.2d 705 (1972). The ordinary agreement for consideration by which a landlord is to make repairs is construed as an agreement to repair on notice. Conahan v. Fisher, 233 Mass. 234, 124 N.E. 13 (1919). Fiorntino v. Mason, 233 Mass. 451, 124 N.E. 283 (1919). Failure to repair under such an agreement gives rise only to a contract action for the cost of the repair. Tort liability will exist, however, for negligently made repairs. In the absence of such a specific agreement to repair, no agreement will be implied from the mere letting of the premises, and any repairs made will be treated as gratuitous. Bergeron v. Forest, 233 Mass. 392, 124 N.E. 74 (1919)." DiMarzo v. S. & P. Realty Corp., 364 Mass. at 513, 306 N.E.2d at 434.

After seven years of reconsideration and reform, little remains of this obsolete machinery of the common law. Much of the reform has been accomplished judicially. ³ "Recent decisions of this court clearly reflect . . . a shift in philosophy with regard to status distinctions in tort standards of care . . .." Poirier v. Plymouth, --- Mass. ---, --- ^c, 372 N.E.2d 212, 224 (1978). ⁴ In Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43 (1973), we did away with the legal significance in tort of categories of licensee and invitee and held that a landowner owes a duty of reasonable care to all lawful visitors. We said: "The problem of allocating the costs and risks of human injury is far too complex to be decided solely by the status of the entrant, especially where the status question often prevents the jury from ever determining the fundamental question whether the defendant has acted reasonably in light of all the circumstances in the particular case." Id. at 707, 297 N.E.2d at 51. Since Mounsey, we have eliminated other limits based on status. E. g., Soule v. Massachusetts Elec. Co., --- Mass. --- ^d, 390 N.E.2d 716 (1979) (foreseeable child trespasser); Poirier v. Plymouth, supra (employee of independent contractor); Pridgen v. Boston Hous. Auth., 364 Mass. 696, 308 N.E.2d 467 (1974) (helplessly trapped trespasser).

In the landlord-tenant field, we have held that a landlord is liable to a tenant's guest for failing to exercise due care in maintaining common passageways under the landlord's control without regard to their condition at the time of the letting. Lindsey v. Massios, supra. We said that "the status of the person visited, landowner or lessee, should not affect the visitor's right to personal safety or the landowner's obligation reasonably to maintain premises in his control." Id. at 82, 360 N.E.2d at 634. In King v. G & M Realty Corp., supra, we extended the landlord's general and continuing duty to exercise reasonable care as to the safety of common passageways to include tenants as well as their visitors.

We have also attacked the theory on which the tenant's status classification depends. In...