Dubreuil v. Dubreuil

• Citation: 229 A.2d 338,107 N.H. 519
• Parties: Graziella DUBREUIL v. Roger N. DUBREUIL et al.
• Decision Date: 24 February 1967
• Court: Supreme Court of New Hampshire

Page 338

229 A.2d 338

107 N.H. 519

Graziella DUBREUIL v. Roger N. DUBREUIL et al.

Supreme Court of New Hampshire.

Argued Dec. 8, 1966.

Decided Jan. 27, 1967.

Rehearing Denied Feb. 24, 1967.

Andre J. Barbeau and Victor W. Dahar, Manchester, for plaintiff.

Keeley & Whelton and McLaughlin & Berrigan, Nashua (Charles F. Keeley, Nashua, orally), for defendants.

PER CURIAM.

The question before us is whether landlords are liable to their tenant for injuries suffered from a fall upon a slippery common driveway or passway over which they retained control and which led to the only entrance to the tenant's apartment.

On the defendants' motions for nonsuits and directed verdicts, the evidence and all reasonable inferences therefrom must be construed most favorably to the plaintiff. Plume v. Couillard, 104 N.H. 267, 268, 184 A.2d 452; Leonard v. City of Manchester, 96 N.H. 115, 117, 70 A.2d 915.

The record would sustain the following findings of fact: The plaintiff, a woman of sixty, was a tenant of her son and his wife. On the day in question, December 29, 1962, in the late afternoon, she left her apartment located over a portion of the dwelling occupied by the defendants, to get groceries at a neighborhood store. She was in apparent good health at the time and working steadily. The only passway from the public sidewalk which provided access to her second floor apartment was owned and controlled by the defendants. It was over a driveway leading to a two-car garage used by the defendants and a lessee of the extra stall. On the day in question, the driveway was icy and slippery and it had been so on other occasions when she had complained to her son that it was slippery.

When the plaintiff went out to get her groceries on the day of the accident it was not showing, though it had snowed at times during the seven days preceding, and actually on the very day before, and she noticed the icy conditions of the driveway. She remained some minutes at the store, and during that time it began to snow, and was continuing as she returned carrying her groceries. As she described it, she was walking up the middle of the driveway and 'I did not see the ice and I fell. There was snow on it * * * it was snowing, so it covered the ice, so I didn't see it and I fell.'

The driveway had been plowed on the day before the accident, but the ice had not been removed. It appears that similarly after the storms during the week preceding December 29, the defendants had also cleaned the snow away, but had not removed the ice, nor pur any sand or other the ice, nor put any sand or other dangerous.

The defendants predicated their motions for nonsuits and directed verdicts, both before the Superior Court and in their brief and oral argument in this court on the proposition that a tenant cannot recover in circumstances such as existed here, because of the landlords' failure to remove a natural accumulation of ice or snow on the premises. They rely upon Abell v. Amoskeag Realty Company, 95 N.H. 439, 65 A.2d 870, as standing for this proposition in this state, and upon the so-called Massachusetts rule, which appears to have had its origin in the case of Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357 (1882), and which has since been followed in some other jurisdictions. Annot. 26 A.L.R.2d 610, 615. We do not believe that the defendants' position is maintainable. In the Abell case, the plaintiff fell upon a public sidewalk adjacent to a common entrance to the landlord's premises. The majority of the court held that the evidence failed to establish that the ice on the public sidewalk which caused the fall resulted from artificial accumulation for which the defendant was responsible rather than from a natural accumulation of snow, for which it was not. The case is distinguishable on its facts from the situation before us, since in this case the plaintiff's fall occurred on a private driveway which the defendants maintained and over which they exercised control.

Although the question now raised has never been squarely decided here, as counsel for the plaintiff recognizes, the tenor of our law points to the conclusion that recovery may be permitted. In Thompson v. Resnik, 85 N.H. 413, 414, 159 A. 355, 356, with reference to the rule of the Woods case, it was said:

'This rule has been severly criticized, and competent authorities have declared that it cannot be justified upon grounds of principle. Reardon v. Shimelman, 102 Conn. 383, 387, 128 A. 705, 39 A.L.R. 287; United Shoe Machinery Corporation v. Paine (1 Cir.) 26 F. (2d) 594, 58 A.L.R. 1398. Its adoption here would involve a limitation of or an exception to the general rule in regard to the liability of landlords for the condition of common passageways upon their premises which has heretofore been announced by this court as follows: With reference 'to those portions of the premises which the landlord furnishes for the common use of his tenants and over which he retains control * * * he has the duty to use ordinary care to keep...