DePrizio v. F. W. Woolworth Co.
| Decision Date | 26 June 1935 |
| Citation | 291 Mass. 143,196 N.E. 910 |
| Parties | DePRIZIO v. F. W. WOOLWORTH CO. (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Report from Superior Court, Suffolk County; Keating, Judge.
Actions of tort by Mary DePrizio and Soccorso DePrizio against the F W. Woolworth Company, in which there were verdicts for plaintiffs for the sums of $3,000 and $700. On report from the Superior Court.
Judgment for defendant.
H. P. Brown and P. J. Stella, both of Boston, for plaintiffs.
C. M Pratt and J. J. Sullivan, both of Boston, for defendant.
The plaintiff in the first action seeks to recover damages for injuries received by her as the result of a fall while a customer in the defendant's store. Her husband brought the second action to recover consequential damages. At a trial before a jury there was a verdict for each plaintiff and thereafter the trial judge, who had reserved leave under G. L. (Ter. Ed.) c. 231, § 120, on the defendant's motion, ordered that a verdict be entered for the defendant in each case and reported the cases for the determination of this court. The report states that the only questions presented are whether a written notice of the time, place and cause of the injury was required and if so whether a valid notice was given in either case. By stipulation of the parties, if the judge rightly ordered a verdict to be entered for the defendant in either case, judgment is to be entered for the defendant in that case, but if the judge erred in ordering a verdict to be entered for the defendant in either case, judgment is to be entered for the plaintiff in that case in the sum found by the jury.
It appears from the evidence summarized in the report that the plaintiff in the first case, hereafter referred to simply as the plaintiff, on the forenoon of February 12, 1927, visited the store of the defendant, made some purchases in the basement and was going up a stairway leading to the first or street floor when she ‘ slipped on a hard piece of tramped dirty snow,’ fell and was injured. On the day before there had been a fall of one inch of snow and on the morning of the accident there was some snow on the street and sidewalk in front of the store.‘ That snow was of the soft sticky kind so that it would adhere to the feet of customers entering the store to such an extent that there was on the floor of said first floor between * * * [the] swinging entrance doors and the top of said stairway leading to the basement and upon the steps thereof patches of dirty tramped hard snow, mixed snow and dirt being carried in on the feet of customers and falling off onto the floor and said steps and being tramped upon and made hard and slippery in places.’ There was evidence that the precise condition which caused the plaintiff's fall had been on the stairway a considerable time and the jury were warranted in concluding that the defendant was negligent in not discovering and removing it, White v. Mugar, 280 Mass. 73, 181 N.E. 725, and that the plaintiff was not negligent.
The decisive question here presented is whether the statute, G. L. c. 84, § 21, St. 1922, c. 241 (), applies to the foregoing facts and required the plaintiff, as a condition precedent to maintaining her action, to give to the defendant written notice of the time, place and cause of her injury. That statute provided: * * *’ The language was substantially the same as the above quoted words when the statute was originally passed (St. 1908, c. 305).
The statute did not create a liability on the part of an owner of real estate for a defective condition existing thereon; that liability rests on common law principles. It manifestly put a limitation on the common law right of a person injured through a defective condition consisting in whole or in part of snow or ice and existing on some portions at least of an owner's real estate. It required a written notice of the time, place and cause of the injury as a condition precedent to maintaining an action, whereas at common law no such notice was necessary. There are many cases where the statute has been held applicable to defective conditions existing upon the land of an owner abutting on a public way and upon the outside portions of structures thereon. The statute applies to defective conditions existing on areas which are provided for persons to walk upon such as walks leading from a building to the street, O'Donoughue v. Moors, 208 Mass. 473, 94 N.E. 749, and outside stairways and platforms, Paszkowski v. Stony Brook Paper Co., 210 Mass. 86, 96 N.E. 129; Erickson v. Buckley, 230 Mass. 467, 120 N.E. 126; Urban v. Simes, 259 Mass. 336, 156 N.E. 697, but it is not limited to defective conditions located in areas used for foot travel. Within the compass of the statute there is a defective condition on the roof of a building if snow or ice there collects which later falls and strikes a passerby. Baird v. Baptist Society, 208 Mass. 29, 94 N.E. 296; Tobin v. Taintor, 229 Mass. 174, 118 N.E. 247; O'Neil v. Squire, 230 Mass. 294, 119 N.E. 797. See, also, Wood v. Town of Oxford (Mass.) 195 N.E. 321. There has been no case deciding that the statutory requirement of notice as a condition precedent to maintaining an action applies to a defective condition caused by or consisting wholly of snow or ice existing inside a building. That question is here presented. The answer depends upon the construction to be given to the statute. The crucial point is whether the word ‘ premises' in the governing statute already quoted refers only to that which lies out of doors and exposed to the weather, or whether it comprises the inside as well as the outside of buildings. Naturally, the first thought respecting snow or ice is that it lies in the open air. But the right to recover damages of a landowner because of his negligence in maintaining snow and ice where he is bound to anticipate that people may be walking is not confined to places in the open air. The case at bar is illustrative of the breadth of the landowner's liability for negligence in that particular. It is quite conceivable that actions might be sustained against municipalities for injuries sustained by reason of defects in public ways, dependent in part upon snow and ice (Newton v. City of Worcester, 169 Mass. 516, 48 N.E. 274; Id., 174 Mass. 181, 54 N.E. 521) at places not exposed to the weather, and where snow or moisture had been tracked by travelers, as for example, in underpasses, in tunnels and in covered bridges. ‘ Premises' is a word of somewhat varied...
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