Crowell v. McCaffrey

• Decision Date: 06 March 1979
• Parties: Richard H. CROWELL v. Frederick McCAFFREY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1256

386 N.E.2d 1256

377 Mass. 443

Richard H. CROWELL v. Frederick McCAFFREY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 2, 1979.

Decided March 6, 1979.

William H. Shaughnessy, Boston, for plaintiff.

Richard H. Pettingell, Boston, for defendant.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and LIACOS, JJ.

BRAUCHER, Justice.

The plaintiff was the tenant of the third-floor apartment in a three-family house in Dorchester owned by the defendant. He sued for damages suffered when the railing of the third-floor porch gave way. At the close of the plaintiff's case, the judge directed verdicts for the defendant. The plaintiff appealed from the resulting judgment, we allowed his application for direct appellate review, and we now reverse. We hold that there was a case for the jury on the theory that the defendant was negligent in maintaining an area left in his control. Alternatively, the jury could find that the porch was part of the rented premises, and that there was a breach of the landlord's warranty of compliance with minimum standards prescribed by the State Building Code and the State Sanitary Code. On either theory, the relevant provisions of those codes should have been placed before the jury.

There was evidence of the following facts. The porch in question could only be reached by opening a window across the third-floor hallway from the door to the third-floor apartment. The plaintiff rented the apartment, but not the porch, beginning November 1, 1975. When he rented the apartment he told the defendant he might use the porch in the summertime, and the defendant made no reply. The railing looked old and weather-beaten and needed painting. On the night of December 31, 1975, the plaintiff held a New Year's Eve party at the apartment. Shortly after midnight he went out on the porch to get some air. When he put his hands on the railing it gave way, and he fell to the ground. After the accident the defendant boarded up the window leading to the porch. Photographs showed corroding, rusted nails in the porch railing. The defendant, called as a witness by the plaintiff, testified that the third-floor porch belonged to the third-floor tenant.

The judge excluded from evidence provisions of the State Building Code and the State Sanitary Code. ¹ He ruled that the porch was part of the premises rented to the plaintiff, that there was no evidence from which the jury could find that the porch remained under the control of the defendant, that there was no notice of defect or evidence that the defendant was aware of the defect, and that the porch could not be found to be a common area.

1. The Hemingway case and its progeny. Beginning with Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 293 N.E.2d 831 (1973), this court has reconsidered a number of common law rules relating to the obligations of landowners and particularly landlords. Like courts in other States, we have to some extent departed from the concept of a lease as a conveyance accompanied by independent covenants and subject to the principle, "Let the buyer beware." See Restatement (Second) of Property Landlord & Tenant c. 17, Introductory Note and Reporter's Note (1977); Love, Landlord's Liability for Defective Premises: Caveat Lessee, Negligence, or Strict Liability?, 1975 Wis.L.Rev. 19. In part we have relied on statutory developments, in part on the general law of contracts and the law governing the sale of goods, which long ago abandoned the caveat emptor principle. In Javins v. First Nat'l Realty Corp., 138 U.S.App.D.C. 369, 373, 428 F.2d 1071, 1075, cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970), cited in the Hemingway opinion, the court drew on the analogy of the warranties of fitness implied in sales of goods. See G.L. c. 106, §§ 2-314, 2-315. Cf. McDonough v. Whalen, 365 Mass. 506, 511-513, 313 N.E.2d 435 (1974), where we found "no sound reason to treat a builder of houses or other realty structures differently from a manufacturer of chattels."

In the Hemingway case the court held "that in a rental of any premises for dwelling purposes, under a written or oral lease for a specified time or at will, there is an implied warranty that the premises are fit for human occupation." 363 Mass. at 199, 293 N.E.2d at 843. The case concerned defenses in actions for eviction and rent, and we did not consider the effect of this "warranty of habitability" on the landlord's liability for injuries. Id. at 200 n.13, 293 N.E.2d 831. Three Justices, concurring in the result, thought the Hemingway opinion went beyond the necessities of the case. Id. at 206, 293 N.E.2d 831 (Quirico, J., concurring in part and dissenting in part). They were willing, however, to find an implied agreement by the landlord, with respect to minimum standards prescribed by laws and regulations such as the State Sanitary Code, "(i) that the rented unit complies with such standards at the time of the renting, and (ii) that he will do whatever such laws, regulations or codes require a landlord to do for compliance with such standards during the term of the renting." Id. at 218, 293 N.E.2d at 853.

Later cases expanded the liability of a landowner for personal injuries. In Mounsey v. Ellard, 363 Mass. 693, 707, 297 N.E.2d 43 (1973), we announced a new rule that occupiers of land owe a duty of reasonable care to all lawful visitors without regard to the previous distinction between licensees and invitees. Cf. Pridgen v. Boston Hous. Auth., 364 Mass. 696, 711-713, 308 N.E.2d 467 (1974) (liability to trespasser). In Bouchard v. DeGagne, 368 Mass. 45, 329 N.E.2d 114 (1975), we held that the rule of the Mounsey case was to be applied retroactively to cases arising before that decision. Cf. Poirier v. Plymouth, --- Mass. ---, --- - --- ^A, 372 N.E.2d 212 (1978) (liability of landowner to employee of independent contractor).

More directly relevant here are recent cases dealing with the liability of a landlord for injuries caused by defects in common areas. See King v. G & M Realty Corp., --- Mass. ---, --- - --- ^B, 370 N.E.2d 413 (1977), and cases cited. In those cases we held that a landlord has a general obligation to exercise reasonable care in keeping safe the common areas of an apartment building or similar structure for use by his tenants and their visitors, and that the duty is not defined by the safety conditions that existed at the commencement of the tenancy. We also held that violation of a statute or building code provision related to safety was evidence of the landlord's negligence. Lindsey v. Massios, --- Mass. ---, --- - --- ^C, 360 N.E.2d 631 (1977). Perry v. Medeiros, 369 Mass. 836, 841, 343 N.E.2d 859 (1976). Those cases arose before the effective dates of G. L. c. 186, §§ 15E ² and 19, ³ but in the King case we suggested that § 19 was an indication of legislative policy consistent with our ruling. --- Mass. at --- n.9 ^D, 370 N.E.2d 413. We also noted that the New Hampshire court, "instead of continuing to reformulate the landlord's tort liability by successive steps, has now indicated that ordinary principles of tort liability ought to apply to landlords as to other persons. Sargent v. Ross, 113 N.H. 388, 308 A.2d 528, (1973) (Kenison, C.J.)." Id. at --- n.5 ^E, 370 N.E.2d at 415.

In two cases involving defects in rented premises, we upheld the liability of the landlord under traditional principles. Markarian v. Simonian, --- Mass. ---, --- ^F, 369 N.E.2d 718 (1977) (negligent repairs under agreement, injury to tenant's child). DiMarzo v. S. & P. Realty Corp., 364 Mass. 510, 514, 306 N.E.2d 432, 434 (1974) (same, injury to tenant's employee). In each case we found it unnecessary to consider the impact of the decisions stemming from the Hemingway case. But in the DiMarzo case we said: "We might well be inclined toward a reconsideration of the rules of tort liability of lessors under a tenancy at will if the decision in this case required it."

2. Negligence. Our recent cases on "common areas" have in effect eliminated any distinction between such areas and other areas in the landlord's control. "Where no 'common passageway' is involved, the rule is that a person in control of a building, or of a part thereof, is required to exercise reasonable care to keep it in such condition that others will not be injured in their persons or property." Regan v. Nelson, 345 Mass. 678, 680, 189 N.E.2d 516, 518 (1963), and cases cited. Thus we need not consider whether the porch in the present case should be treated like a common passageway.

If the landlord retained control of the porch, he was under a duty to exercise reasonable care to keep it in such condition that others would not be injured. Under King v. G & M Realty Corp., supra, if a breach of that duty caused injury to a tenant, it made no difference whether the porch was a common area, whether the defect existed at the time of the letting of the property, or whether the defect was a violation of the building code of the city. Cf. G. L. c. 186, § 15E (see note 2, Supra ), which is more limited in scope. We think the evidence, as we have summarized it, warranted findings that the tenant suffered physical harm caused by a dangerous condition on the porch, and that "the landlord by the exercise of reasonable care could have: (1) discovered the condition and the unreasonable risk involved therein; and (2) made the condition safe." Restatement (Second) of Property Landlord & Tenant § 17.3 (1977).

If the landlord retained control, therefore, it was error to direct a verdict for the defendant on the negligence count in the complaint. Moreover, the evidence would have warranted a finding that there were violations of the State Building Code and the State Sanitary Code (see note 1, Supra ). Such violations would have been evidence of negligence, and the relevant provisions should have been placed before the jury.

3. The landlord's control. The question remains whether the landlord...