Altman v. Barron's, Inc.

• Decision Date: 15 June 1961
• Citation: 175 N.E.2d 506,343 Mass. 43
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Paul H. ALTMAN and another v. BARRON'S, INC. Paul H. ALTMAN and another v. John W. KELLAR.

Page 506

175 N.E.2d 506

343 Mass. 43

Paul H. ALTMAN and another v. BARRON'S, INC.

Paul H. ALTMAN and another v. John W. KELLAR.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 2, 1961.

Decided June 15, 1961.

Newton A. Lane, Boston (Bernard N. Borman, Boston, with him), for plaintiffs.

Walter F. Henneberry, Weston (John J. O'Brien, Boston, with him), for defendant Barron's, Inc.

Daniel A. Lynch, Boston (Paul F. Degnan, Dorchester, with him), for defendant Kellar.

Before WILKINS, C. J., and SPALDING, WILLIAMS, KIRK and SPIEGEL, JJ.

SPIEGEL, Justice.

These are two actions of tort to recover damages for personal injuries sustained by the minor plaintiff, Paul H. Altman, and consequential damages by the plaintiff Arthur D. Altman, the father of the minor plaintiff. One action is brought against the defendant corporation, Barron's, Inc., the operator of a store in Newton, hereinafter referred to as Barron's, and the other action against the defendant John W. Kellar, a contractor who was performing work in the store. The actions were consolidated for trial. Lumiansky v. Tessier, 213 Mass. 182, 188, 99 N.E. 1051. The cases come here on exceptions to the direction of verdicts for both defendants.

From the evidence most favorable to the plaintiffs the following facts appear: Under date of May 21, 1957, Barron's entered into a written contract with Kellar for a new addition and alterations to the store operated by Barron's. The work was to consist of breaking through the rear wall of the store and constructing a new stairway to extend from the basement to the main floor of the store. The new stairway was to run from the rear of the basement up a series of steps to a landing which was on the same level as, and permitted access to, the rear parking lot; from here it would take a left angle turn to a landing half way between the parking lot level and the main store; a series of steps was to run from the second landing up to the main floor. A portion of the main floor area bordered on and overlooked the second landing and the series of steps running down to the second landing.

About two weeks before the accident the stairway had been completed, and two wooden railings were constructed at the edge of the rear of the main floor overlooking the new stairway and stairway and second landing. The top railing was three and one half feet above the floor. On the surface of the floor beneath the top railing another railing was constructed. The lower railing, which touched the floor, was three inches thick and a five-eighths inch strip was attached on top of it. The opening between the upper railing and the railing on the floor measured two feet eight and one half inches.

Nine or ten days before the accident, the carpentry work had been completed in the rear area, and Kellar's men were working in another section of the store. The contract between Barron's and Kellar called for the insertion of a glass panel between the two railings. The new door leading from the parking area to the new stairway had been locked for two weeks prior to the accident and the key was in the possession of the president of Barron's.

About a week before the accident Barron's employees had moved merchandise cases six to eight feet high against two sections of the upper railing and also placed cases about six feet high in front of the new stairway, but left an open space wide enough for a man to squeeze through between these cases. Some days before the accident, Barron's employees had placed a clothing rack with bathrobes on hangers right up against the third section of the railing. The rack containing bathrobes was eight feet high and the robes extended to about eight to three inches from the floor. The distance from the main floor behind the bathrobe rack to the place below where the minor plaintiff was found was about eight and one half feet. Barron's testified by answers to interrogatories that it was in control of the main floor but was not in control of the work performed there or the second landing.

On the morning of September 16, 1957, Mrs. Altman, the mother of the minor plaintiff, took her two boys, Murray aged five and one half years, and Paul, the minor plaintiff, who was two years ten months old and three feet tall, to the store for the purpose of buying shirts and slacks for them. They went to the 'boys' department' to buy slacks for the older boy and arrived at a counter about five steps from the rack of bathrobes. While Mrs. Altman stood at this counter examining slacks with a salesman she permitted the minor plaintiff to play. She observed the minor plaintiff playing at the rack containing th bathrobes but was not aware that immediately behind the rack the floor dropped off into the stair well. Twenty or thirty second after Mrs. Altman saw the minor plaintiff playing in this area 'she heard a thud' followed by crying a few seconds later. She went to the clothes rack and saw that '[t]here was no floor on the other side of the clothing rack.' She then ran down the new stairway and found the minor plaintiff lying on the second landing.

The minor plaintiff comes in the category of a business invitee. Holbrook v. Aldrich, 168 Mass. 15, 16, 46 N.E. 115, 36 L.R.A. 493. See Howlett v. Dorchester Trust Co., 256 Mass. 544, 546, 152 N.E. 895; Grogan v. O'Keeffe's, Inc., 267 Mass. 189, 193, 166 N.E. 721. See Flynn v. Cities Serv. Ref. Co., 306 Mass. 302, 304, 28 N.E.2d 453; Valunas v. J. J. Newberry Co. Inc., 336 Mass. 305, 306, 145 N.E.2d 685; Brady v. Great Atlantic and Pacific Tea Co., 336 Mass. 386, 388, 145 N.E.2d 828. It was the duty of Barron's to use reasonable care to keep the premises in a reasonably safe condition for the use of business invitees according to their invitation, or at least warn them against any danger attendant upon this use which was known or should have been known to Barron's and was not known by the business invitees or obvious to any ordinarily intelligent person. Kelley v. Goldberg, 288 Mass. 79, 81, 192 N.E. 513; Flynn v. Cities Service Ref. Co., 306 Mass. 302, 303, 28 N.E.2d 453; Underhill v. Shactman, 337 Mass. 730, 734-735, 151 N.E.2d 287; Del Sesto v. Condakes, Mass., 167 N.E.2d 635. ¹ Whether the invitation to the minor plaintiff extended to that part of the store where the accident occurred was a question of fact for the jury. Coates v. First Natl. Stores Inc., 322 Mass. 563 565, 78 N.E.2d 501; Giacomuzzi v. Klein, 324 Mass. 689, 691-692, 88 N.E.2d 548.

It was also a question of fact for the jury whether the invitation to the minor plaintiff included or anticipated that he might leave his mother and go near, under or behind the clothes rack containing bathrobes. The fact that the accident occurred in the 'boys' department' may have some bearing on this issue. Cf. Flynn v. Cities Service Ref. Co., 306 Mass. 302, 304, 28 N.E.2d 453.

It was reasonable for Mrs. Altman to bring the minor plaintiff to the...