Carroll v. Hemenway

• Decision Date: 29 November 1943
• Citation: 315 Mass. 45,51 N.E.2d 952
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: WILLIAM F. CARROLL v. AUGUSTUS HEMENWAY, JUNIOR, & others.

315 Mass. 45

51 N.E.2d 952

WILLIAM F. CARROLL v. AUGUSTUS HEMENWAY, JUNIOR, & others.

Supreme Judicial Court of Massachusetts, Suffolk.

November 29, 1943

November 5, 1943.

Present: FIELD, C.

J., LUMMUS, QUA COX, & RONAN, JJ.

Negligence, Invited person, Licensee, One owning or controlling real estate Violation of law, Elevator. Police. Actionable Tort. Elevator. Real Property, Elevator. Wilful, Wanton or Reckless Misconduct.

A policeman entering a building in the performance of his duty but without actual invitation to do so was no more than a licensee of the person in control of the building, who therefore owed him no duty of care respecting the condition thereof.

If the person in control of a building owes no common law duty of care to one injured through a defective condition of an elevator therein the fact, that the existence of such condition is a violation of the statutes and municipal regulations respecting elevators by the person in control, does not of itself create any civil liability on his part to the injured person.

Wilful, wanton or reckless misconduct on the part of the person in control of a building toward one injured by falling into an unguarded elevator well therein was not shown by evidence merely that the elevator gate at the floor in question was defective and had been tied up so that it did not come down into place when the elevator was not at that floor.

TORT. Writ in the Superior Court dated April 9, 1940. The action was tried before Williams, J., who ordered verdicts for the defendants on all counts of the declaration. The plaintiff alleged exceptions.

M. J. Dray, for the plaintiff. E. J. Sullivan, for the defendants.

QUA, J. The plaintiff, a police officer of Boston, seeing lights in a building of the defendants at about two o'clock in the morning of Sunday, April 17, 1938, entered the building through an open rear door for the purpose of investigating and fell into the unguarded and unlighted well of a freight elevator located a short distance from the door, and was injured.

There was evidence that the mechanism of the elevator gate was defective in such a way that the gate would not stay up when the elevator was at the first floor; that someone had tied it up, with the result that it did not come down in place when the elevator left that floor; and that this condition had been reported to the superintendent or to the assistant superintendent on "very numerous" occasions since the previous autumn.

The plaintiff alleges (1) negligence, (2) gross negligence, (3) wilful wanton, and reckless conduct, and (4) violation of "rules, regulations, laws and ordinances" of the Commonwealth and of the city in respect to the elevator.

It is well settled that a police officer who comes upon land in the performance of his duty but without actual invitation has no greater rights than those of a licensee, and that the person in control of the premises owes him no duty of care with respect to their condition. Brosnan v. Koufman, 294 Mass. 495 , 501. Wynn v. Sullivan, 294 Mass. 562 . Aldworth v. F. W. Woolworth Co. 295 Mass. 344 . The plaintiff therefore cannot recover on the ground of negligence, whether ordinary or gross.

It is equally well settled that the statutes and regulations respecting elevators do not create civil...