Great Atlantic and Pac. Tea Co., Inc. v. Yanofsky

• Decision Date: 03 April 1980
• Citation: 403 N.E.2d 370,380 Mass. 326
• Parties: The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC. v. Robert YANOFSKY, trustee.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 370

403 N.E.2d 370

380 Mass. 326

The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC. v. Robert YANOFSKY, trustee.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 5, 1979.

Decided April 3, 1980.

Louis Barsky, Boston, for defendant.

Joseph J. Walsh, Boston, for plaintiff.

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

QUIRICO, Justice.

This is an appeal by the defendant lessor (Yanofsky) from the denial of his motion for a directed verdict in an action brought against him in the Superior Court by the plaintiff lessee (A & P). A & P sought indemnification ¹ from Yanofsky for a $20,000 payment it had made to one Marie E. Vahey, a customer of A & P, who suffered personal injuries when she slipped and fell on a puddle of water allegedly due to a leak in the roof of the store building leased to A & P by Yanofsky. The jury returned a verdict for A & P in the full amount sought. Yanofsky, both in his motion for directed verdict and on appeal, makes four contentions: (1) that the evidence was insufficient to warrant the jury in finding that A & P incurred damages as a result of Yanofsky's breach of any of the terms of the lease; (2) that the nature of the damages incurred here was neither foreseeable nor in the reasonable contemplation of the parties when the lease was made or renewed; (3) that the evidence was insufficient to support a finding of an express or an implied agreement for indemnification; and (4) that A & P is estopped from recovering for breach of lease terms because any damage it suffered was due to its own superseding negligence. For reasons stated below, we reject these contentions and affirm the judgment.

The following is a summary of the evidence introduced at the trial. The original lease between A & P and Yanofsky's predecessor was for a term of five years from 1950 with two successive options to renew, and it contained provisions under which the lessor both agreed to make "all outside repairs" ² and was given a right of access "at reasonable hours" for repair and inspection. The lease was subsequently renewed on four separate occasions, each for an additional term of five years. The repair clauses cited above were continued in force with each renewal, and were in effect at the time of the events giving rise to this action.

In December, 1974, the manager of the A & P store noticed a leak in the roof over the produce aisle of the store. Yanofsky was notified of the leak by a letter dated December 17, 1974, and he testified that after receiving the letter he attempted to communicate with a roofing contractor who had added a new roof to the building several years before, after earlier problems had arisen. He first tried to reach the contractor by telephone and when he did not succeed he wrote him a letter on December 19, 1974, asking him to make the necessary repairs. At various times before December 23 the manager and his staff mopped up the resulting water on the floor, placed shopping carriages around the area where the water was dripping, and put pails out to catch the water. On December 23, 1974, Marie E. Vahey, a shopper in the store, slipped on the water and fell, sustaining a fractured hip. No repairs had been performed on the roof up to that time.

Mrs. Vahey retained counsel, who undertook negotiations with A & P for the settlement of her claim against them, with the result that on September 25, 1975, Mrs. Vahey executed a release of all claims against A & P in return for $20,000. The release expressly reserved all rights of action against parties other than A & P. ³ Before settling with Mrs. Vahey, A & P made demand upon Yanofsky to assume the defense of the claim, and notified him of the terms of the prospective settlement.

At the close of the plaintiff's case and again at the close of all the evidence Yanofsky moved for a directed verdict, which was denied. In his instruction to the jurors the judge stated that if they found that A & P had acted reasonably in settling Mrs. Vahey's claim for $20,000, it could recover that amount from Yanofsky on either of two theories: (1) if they found that an implied agreement for indemnification of the A & P by Yanofsky resulted from the lease and that a claim such as that by Mrs. Vahey "was reasonably foreseeable by the (parties) when they entered into their (lease, and if the jury found) that they mutually contemplated that something of this sort might happen if the roof were not kept in repair . . . "; or (2) if they found under the common law that Yanofsky was negligent as to the leaky roof but that A & P was not negligent. The judge further instructed the jury that if they found that negligence on the part of A & P had contributed to Mrs. Vahey's injuries, A & P could not recover. Counsel for Yanofsky did not object to these instructions, but seeks to attack both grounds of liability as they apply to him by means of appeal from the denial of his motion for directed verdict.

1. The defendant's principal argument is that an agreement by a lessor to make repairs on the leased premises may not give rise to an implied agreement to indemnify the lessee against losses arising from the failure to repair, beyond the cost of repairs the lessee was himself thereby forced to make. The defendant relies on statements in several of our recent decisions which summarized the earlier case law of this Commonwealth.

In DiMarzo v. S. & P. Realty Corp., 364 Mass. 510, 513, 306 N.E.2d 432, 434 (1974), we stated: "The ordinary agreement for consideration by which a landlord is to make repairs is construed as an agreement to repair on notice. Conahan v. Fisher, 233 Mass. 234, (124 N.E. 13) (1919). Fiorntino v. Mason, 233 Mass. 451, (124 N.E. 283) (1919). Failure to repair under such an agreement gives rise only to a contract action for the cost of the repair. Tort liability will exist, however, for negligently made repairs. In the absence of such a specific agreement to repair, no agreement will be implied from the mere letting of the premises, and any repairs made will be treated as gratuitous. Bergeron v. Forest, 233 Mass. 392, (124 N.E. 74) (1919)." We went on to state, however, that "(w)e 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." Id. at 514, 306 N.E.2d at 434.

In Markarian v. Simonian, 373 Mass. 669, 672, 369 N.E.2d 718, 720 (1977), we stated that "(i)t has been well settled in this Commonwealth that in the absence of an agreement imposing a duty on the landlord to keep the premises in a condition of safety, the landlord is not liable in tort to a tenant for injuries suffered by a tenant for a failure to execute such repairs. DiMarzo v. S. & P. Realty Corp., 364 Mass. 510, 513, (306 N.E.2d 432) (1974). Conahan v. Fisher, 233 Mass. 234, 237-238, (124 N.E. 13) (1919)." In our decision in Markarian, we held that such an agreement could be implied from the circumstances, if protection from injury or loss were within the purpose of the agreement to repair, and if the damage suffered was a type of harm foreseeable from the failure to repair. We further stated that a case reaching the opposite result on similar facts, Chelefou v. Springfield Inst. for Sav., 297 Mass. 236, 8 N.E.2d 769 (1937), was "of dubious validity." Markarian, supra 373 Mass. at 675, 369 N.E.2d 718.

Most recently, in Young v. Garwacki, --- Mass. ---, --- ^a, 402 N.E.2d 1045, 1048 (1980), we commented upon the above-quoted language from DiMarzo by saying, "(a)fter seven years of reconsideration and reform, little remains of this obsolete machinery of the common law." We there noted that part of this evolution had been accomplished by statute, and cited among others G.L. c. 186, § 19 (St.1972, c. 665), which provides in part as follows: "A landlord or lessor of any real estate (with exceptions not here material) shall, within a reasonable time following receipt of a written notice from a tenant forwarded by registered or certified mail of an unsafe condition, not caused by the tenant . . . (or certain others) exercise reasonable care to correct the unsafe condition described in said notice except that such notice need not be given for unsafe conditions in that portion of the premises not under control of the tenant. The tenant or any person rightfully on said premises injured as a result of the failure to correct said unsafe condition within a reasonable time shall have a right of action in tort against the landlord or lessor for damages."

This statute has not been interpreted in any detail by a decision of this court. See Crowell v. McCaffrey, --- Mass. ---, --- ^b, 386 N.E.2d 1256 (1979); King v. G&M Realty Corp., 373 Mass. 658, 663 n. 9, 370 N.E.2d 413 n. 9 (1977). It was not relied upon by the plaintiff in the present action. In its brief A & P alleges that Yanofsky violated the section and that this violation constituted evidence of negligence, but A & P neither argued such a contention nor introduced evidence on this point at trial. Therefore, we need not construe the statute to apply it to the present case. However, we have previously noted its language to be indicative of a legislative policy consistent with decisions of this court which modify the common law rights and liabilities of lessors and lessees. Crowell, supra. King, supra. In this context, it is also appropriate to note that the facts of the present case arguably give rise to a cause of action under the statute in favor of Mrs. Vahey against Yanofsky. Although no evidence was introduced that A & P notified Yanofsky of the leak by certified or registered mail, arguably no such notice was required, because under the lease the lessor was bound "to make all outside repairs," which would include repairs to the roof, and it would therefore follow that the roof was a "portion of the premises not under control of the tenant," as the quoted words are used in G.L. c....