Brazinskos v. A.S. Fawcett, Inc.

• Decision Date: 08 May 1945
• Citation: 318 Mass. 263,61 N.E.2d 105
• Parties: BRAZINSKOS v. A. S. FAWCETT, Inc. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 263

61 N.E.2d 105

BRAZINSKOS

v.A. S. FAWCETT, Inc. (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

May 8, 1945.

Exceptions from Superior Court, Middlesex County; Goldberg, Judge.

Action of tort by Anastasia Brazinskos against A. S. Fawcett, Inc., for injuries sustained by plaintiff, consolidated with an action by George Brazinskos, husband of female plaintiff, against same defendant, for consequential injuries. A verdict was directed for defendant in each case, and the plaintiffs bring exceptions.

Exceptions overruled.

Before FIELD, C. J., and DOLAN, RONAN, WILKINS, and SPALDING, JJ.

E. A. Counihan, Jr., and W. H. McLaughlin, both of Boston, for plaintiff.

R. B. Snow, of Boston, for defendant.

SPALDING, Justice.

These are two actions of tort; in one the female plaintiff (hereinafter called the plaintiff) seeks compensation for injuries which she sustained by falling on an accumulation of ice which had formed on the sidewalk in front of the defendant's premises; the other is brought by the plaintiff's husband to recover consequential damages. The plaintiff's declaration contains two counts but the second, which alleges a nuisance, is the only one that need concern us as the plaintiff does not argue that she is entitled to recover under the first. At the close of the evidence the judge directed a verdict for the defendant in each case, and the correctness of this action is the only question for decision.

The evidence most favorable to the plaintiff was as follows: About 10:30 A.M. on January 29, 1941, the plaintiff while walking on the sidewalk in front of the premises numbered 920-928 on Cambridge Street, in Cambridge, slipped and fell on some ice which had formed there. It is not disputed that the building at this location was owned by the defendant and that at the time of the accident it was entirely occupied by and was under the control of the Trimont Auto Repairing Company (hereinafter called the tenant) under a lease that ran for three years from July 1, 1940. The building is designed as a one-story garage and has a frontage of about 80 feet on Cambridge Street. The place where the plaintiff fell was a few feet to the east of the westerly corner of the building. The roof of the building is flat and there is a studded parapet along the front edge. The parapet is from 14 to 16 inches wide. Along each side of the roof there is a gutter 4 inches deep and 5 inches wide. On the west side the gutter is drained into the sewer by a conductor which is about 40 feet back from the sidewalk. At the time of the accident there was snow on the roof of the garage and there was ice on the sidewalk, but only at the place where the plaintiff fell. Ice had formed on the wall of the building at the westerly corner and it extended across the sidewalk into the street. ‘It was one straight line all the way and started from the roof, down the side of the wall, and on to the sidewalk.’

There was evidence that the defendant through its president had knowledge, prior to the execution of the lease referred to above, of the fact that water would come from the roof and down the westerly corner of the building and across the sidewalk and that during the winter time, on occasions, it would freeze and form a patch of ice at the place where it could have been found the plaintiff fell. The defendant also knew that in a snow storm snow would accumulate on top of the parapet. There was testimony that snow forming on the parapet could melt and flow down the side of the building and across the sidewalk on to the street.

The lease between the defendant and the tenant contained a provision that the ‘Lessee agrees that he will at all times heat, protect and care for the said garage building and * * * make all repairs necessary on the said building during the term of his lease so as to keep * * * [it] and its equipment in the same condition, reasonable use and wearing thereof excepted, as the same are now in or may be put in by said Lessor during the term of said lease.’ It also contained a covenant in which the lessee agreed to indemnify the lessor and hold it ‘harmless against any injury loss or damage to any person or property on the said premises or use made thereof which shall be unlawful, offensive or contrary to any law of the Commonwealth * * * or ordinance * * * of the city of Cambridge.’ The lessor was given the right during the term to enter and view the premises ‘at all reasonable times.’

Since it does not affect the result, we assume, without deciding, that the plaintiff's notice of the time, place and cause of the injury was in compliance with G.L.(Ter.Ed.) c. 84, § 21, and pass to the merits of the case. The defendant, having parted with the control of the premises, would not be liable to the plaintiff for an injury due to the failure to keep them in a reasonably safe condition. Liability for an injury so incurred commonly depends upon control of the instrumentality that caused it. City of Lowell v. Spaulding, 4 Cush. 277,50 Am.Dec. 775;Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 15 N.E. 84,4 Am.St.Rep. 279;Szathmary v. Adams, 166 Mass. 145, 44 N.E. 124;Shephard v. Worcester County Institution for Savings, 304 Mass. 220, 222, 23 N.E.2d 119;Nichols v. Donahoe, 309 Mass. 241, 34 N.E.2d 681. But cases may arise where a landlord is liable notwithstanding the fact that he has relinquished control of the premises. Thus where there is a lease of premises on which exists a nuisance or such a condition as plainly will lead to the creation of a nuisance, and a surrender of control is made to the tenant without any express agreement touching the nuisance, the landlord may be found to have contemplated the continuance of this condition by the tenant and may be held liable to third persons who are thereby injured. Maloney v. Hayes, 206 Mass. 1, 91 N.E. 911, 28 L.R.A.,N.S., 200. See Clifford v. Atlantic Cotton Mills, 146...