Alessi v. Fitzgerald

• Citation: 105 N.E. 437,217 Mass. 576
• Parties: ALESSI v. FITZGERALD.
• Decision Date: 22 May 1914
• Court: United States State Supreme Judicial Court of Massachusetts

217 Mass. 576

105 N.E. 437

ALESSI v. FITZGERALD.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1914

COUNSEL

J. W Pickering, of Boston, for plaintiff.

Dickson & Knowles, of Boston, for defendant.

OPINION

BRALEY J.

If it be assumed that the defendant's answers to the interrogatories would have warranted the jury in finding that he retained control of the hall and stairway, the defective condition of which is alleged to have caused the plaintiff's injuries, yet the verdict for the defendant was rightly ordered. It is true, as the plaintiff contends that where the landlord remains in possession of a part of the premises after the entry of a tenant, which he is bound to maintain in a reasonably safe condition for the use of tenants, he is liable in tort, not only to the tenant but to the tenant's family, to his servants or employés, to his boarders and lodgers, and to those who necessarily use this portion of the premises in furtherance of their business relations with the tenants, or who visit the tenant by his express invitation, if they are injured through defects which in the exercise of due diligence he should have discovered and remedied. Marwedel v. Cook, 154 Mass. 235, 28 N.E. 140; Domenicis v. Fleisher, 195 Mass. 281, 81 N.E. 191; Cummings v. Ayer, 188 Mass. 292, 74 N.E. 336; Wright v. Perry, 188 Mass. 268, 270, 74 N.E. 328; Coupe v. Platt, 172 Mass. 458, 459, 52 N.E. 526, 70 Am. St. Rep. 293.

But upon the view of the evidence most favorable to the plaintiff, and according to her own uncontradicted testimony she was injured while seeking employment for a stepdaughter who accompanied her, without any previous invitation to enter the building. It is not shown that the tenant, whose aid she sought, conducted an employment office or was engaged in the business of assisting those out of work to obtain a situation, and the jury would have been warranted in finding only that the plaintiff went to the tenement and used the stairs in returning to the street for her own personal advantage, as well as for the benefit of her stepdaughter. The purpose of the visit doubtless was lawful, yet no implied invitation having been extended by the defendant for strangers to use the premises, she was a bare licensee to whom he owed no duty to furnish a properly constructed stairway, or a sufficiently lighted hall. Plummer v. Dill, 156 Mass. 426, 31 N.E. 128, 32 Am. St. Rep. 463; McCarvell v....