O'Brien v. Peterson

• Decision Date: 06 November 1952
• Citation: 329 Mass. 427,108 N.E.2d 538
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: O'BRIEN v. PETERSON.

Page 538

108 N.E.2d 538

329 Mass. 427

O'BRIEN v. PETERSON.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 8, 1952.

Decided Nov. 6, 1952.

Francis J. Monahan, Boston, for plaintiff.

Joseph W. Lobdell, Boston, for defendant.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.

RONAN, Justice.

The plaintiff, a guest at the defendant's summer hotel, was injured when she fell into a hole while walking along shore line property adjacent to the hotel at about 9 o'clock on the evening of June 30, 1945. The plaintiff had a verdict, and the case is here upon the defendant's exception to the denial of a motion to direct a verdict for him.

The hotel faced the ocean and was located about three hundred feet away and upon a bluff about thirty feet above the water level. The land descended gradually from the hotel to the ocean, and a strip of this land adjacent to the ocean and extending on each end to a jetty was used by the defendant's guests for the purposes of a beach. There was only one path from the hotel running toward the beach. It was frequently used by the guests of the hotel. It was four or five feet wide with a clay surface, and when it reached a point two thirds of the way down to the beach it fanned out on both sides into level sand. On the right it levelled out into a sandy area fifty feet square on which were located a lobster shack about twenty feet square and a brick or stone fireplace four feet high and five feet wide with a grill top and an oven below the grill. The area about the shack and grill was commonly used by bathers. Parties of six or seven persons, some of whom were guests at the hotel, held 'weenie roasts' so called on week ends during the summer of 1944 in this area. Such a roast was held on the afternoon of the accident and on the previous week end.

The plaintiff, intending to hold a roast at the oven in the evening of June 30, 1945, had secured the food and talked with the manager of the hotel from whom she had obtained knives and a fork. The manager then talked with two employees who had heard his conversation with the plaintiff. They left the hotel and went to the vicinity of the oven where they began to collect material to build a fire in the oven. The plaintiff and her sisters went along the pathway, and while she was walking near the oven she fell into a hole four feet wide and three feet deep; as she fell she struck a jagged and broken piece of red clay sewer pipe which came out of the sand about a foot above the bottom of the hole.

The cooking of an outdoor meal of the kind contemplated by the plaintiff was not an unusual activity indulged in by those who visit beaches, especially where a grill is provided for their accommodation. The grill was located about two hundred feet away from the hotel and but a short distance from the residence occupied by the defendant. Roasts were conducted by the guests of the hotel for such a period of time that the jury could find that the defendant knew or ought to have known of their occurrence. Moreover, the jury could infer that the manager of the hotel knew that the plaintiff planned to use the oven when he supplied her with the knives and fork immediately before she left for the oven and spoke with his employees who were to make the fire in the oven. In addition, the jury had before them evidence relating to the location of the oven with respect to the path and the hotel itself, and the nature of the defendant's business, and were warranted in finding, as they impliedly did, that the oven was held out by the defendant as one of the facilities for the use and enjoyment of his paying guests, that he intended it to be used by his guests, and that the plaintiff was thereby induced to proceed to the oven and the...