Burelle v. Pienkofski

• Decision Date: 03 December 1929
• Citation: 148 A. 24
• Parties: BURELLE v. PIENKOFSKI.
• Court: New Hampshire Supreme Court

148 A. 24

BURELLE

v. PIENKOFSKI.

Supreme Court of New Hampshire. Hillsborough.

Dec. 3, 1929.

Transferred from Superior Court, Hillsborough County; Scammon, Judge.

Action by Arthur J. Burelle against Jim Pienkofski for personal injuries caused by a defect in a common passageway leading to defendant's tenement property. Transferred on plaintiff's exception to the direction of a verdict for defendant at the close of all the evidence. Exception sustained, and new trial ordered.

Thomas J. Leonard and Albert Terrien, both of Nashua, for plaintiff.

Ivory C. Eaton, of Nashua, for defendant.

SNOW, J. The rule that a tenant takes the premises as he finds them, and that, in the absence of warranty or deceit, neither the tenant nor his invitees may recover against the landlord for injuries sustained by reason of defects therein (Towne v. Thompson, 68 N. H. 317, 319, 44 A. 492, 46 L. R. A. 748; Clark v. Sharpe, 76 N. H. 446, 83 A. 1090, 41 L. R. A. (N. S.) 47; Marston v. Andler, 80 N. H. 564, 122 A. 329), does not apply to those portions of the premises which the landlord furnishes for the common use of his tenants and over which he retains control (Gobrecht v. Reckwith, 82 N. H. 415, 417, 135 A. 20, 52 A. L. R. 858; Saad v. Papageorge, 82 N. H. 294, 296, 133 A. 24). In such cases he has the duty to use ordinary care to keep such portions in safe condition, and is liable to the tenant for injuries resulting from his failure to do so. Idem. He owes a like obligation to the invitee of a tenant rightfully using the premises. Gleason v. Boehm, 58 N. J. Law, 475, 34 A. 886, 32 L. R. A. 645; 1 Tiffany, Landlord & Tenant, § 89; 25 A. L. R. 1287 et seq.; 39 A. L. R. 298. The landlord's duty under the exception to the rule is not limited to interior passageways, but, on principle, extends to approaches thereto which he has provided upon his land for like common use of tenants and of which he retains control. Saad v. Papageorge, supra; 2 Underbill, Landlord & Tenant, § 485; 25 A. L. R. 1285, 1317 et seq.

The defendant owns a three-tenement block on the easterly side of Grove street in Nashua, the sole approach to which available to tenants thereof is a yard or passageway leading off said street and along the northerly side of the block to the several tenements therein. This passageway is reached from the street by a flight of three stone steps. The steps are strips of split stone, each consisting of two pieces, laid end to end, and all set in the ground or upon small rocks, to hold them in place. The plaintiff's evidence tended to show that the northerly stone in the top step was loose and had been for a year; that two or three weeks before the accident the defendant's attention had been called thereto, and to the possibility of an accident, and that he then replied that he was "going to fix everything"; that the plaintiff was ignorant of the defect. At the trial the defendant, while denying knowledge that the step was loose,, admitted that he retained control of the passageway and that it was his duty to keep the steps in repair. The question of the tenant's right in the case of a known defect existing at the time of letting does not here arise.

The plaintiff called on one of the defendant's tenants to deliver a message to her at her request. He...