Humphrey v. Byron

• Decision Date: 21 July 2006
• Citation: 850 N.E.2d 1044,447 Mass. 322
• Parties: Lena A. HUMPHREY, administratrix,<SMALL><SUP>1</SUP></SMALL> v. Florence BYRON & others.<SMALL><SUP>2</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

850 N.E.2d 1044

447 Mass. 322

Lena A. HUMPHREY, administratrix,¹ v. Florence BYRON & others.²

Supreme Judicial Court of Massachusetts, Plymouth.

Argued December 5, 2005.

Decided July 21, 2006.

Joseph C. Borsellino, Newton (Neil D. Schnurbach with him) for the plaintiff.

Thomas R. Murphy, Quincy, for the defendants.

The following submitted briefs for amici curiae:

Christopher A. Kenney, Boston, & Edward S. Cheng for Massachusetts Defense Lawyers Association.

Andrew R. Grainger, Martin J. Newhouse, Boston, & Ben Robbins for New England Legal Foundation & another.

Patrick T. Jones, Boston, & J. Michael Conley, Braintree, for Massachusetts Academy of Trial Attorneys.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

CORDY, J.

"In Young v. Garwacki, 380 Mass. 162, 402 N.E.2d 1045 (1980), we held that, even in the absence of an express agreement to keep rented premises in repair, a lessor of residential premises had a duty to exercise reasonable care to assure that others legitimately on the leased premises were not subject to an unreasonable risk of harm. If such a lessor knew or should have known of a defect, the lessor would be liable for injuries resulting from the lessor's negligent maintenance of areas rented to the lessee." Chausse v. Coz, 405 Mass. 264, 266, 540 N.E.2d 667 (1989). In imposing this duty on residential landlords, we explicitly reserved the question whether a similar duty should extend to lessors of nonresidential properties. Young v. Garwacki, supra at 171 n. 12, 402 N.E.2d 1045. In subsequent cases, we have done the same. See Chausse v. Coz, supra, and cases cited. In the present case, we are again asked to impose that duty on commercial landlords, or at least on those landlords who rent space to small businesses.³ A Superior Court judge allowed the defendants' motion for summary judgment, and the plaintiff appealed. We granted a joint application for direct appellate review. We decline to impose such a duty and affirm the grant of summary judgment.

1. Background. For purposes of summary judgment, the following facts were before the judge. Robert Humphrey (Humphrey) worked for Gateway Graphics and Awards, Inc. (Gateway), a silkscreen printing company. The company operated out of a building in Wareham, leased to it by the defendants Florence Byron and Joanne Byron, sisters who occasionally operate as Byron & Byron (landlord). In January, 2000, Humphrey was injured in a fall while working in the building.

The principals of Gateway were Michael Humphrey (Humphrey's brother) and a partner. Its business operations commenced on the purchase of Cape Cod Seriagraphics (Seriagraphics) in November, 1998. At the time of the purchase, Seriagraphics was located in the leased premises. Following its acquisition of Seriagraphics, Gateway executed a new lease with the landlord.

The lease was for a one-year term.⁴ It consisted of a preprinted form with substantial handwritten modifications and additions. The modifications and additions reflected, in part, negotiations between Gateway, which was represented by counsel, and the landlord, which was not. For example, the rent was negotiated down from $1,000 per month to $888.88 per month. The lease provided that Gateway would have "exclusive control of the leased premises," which was the entire building, and the obligation to maintain, at its own expense, "both outside and inside" of the same. The lease also provided that "additions, repairs, alterations, or structural changes" that the lessee wished to make could only be done with the lessor's approval, and that the lessor could, at reasonable times, enter the premises and make "repairs and alterations compatible with the lessee's use of premises." The leased premises included the basement and the stairs leading down to it from the first floor.⁵ The stairs had no railing, were wobbly, and had low ceiling clearance. It was from these stairs that Humphrey fell in January, 2000.

At the time of his accident, Humphrey was Gateway's only employee. He was descending the stairs, as he had done regularly for at least the past fifteen months, to retrieve stock or tools stored in the basement. The injury he sustained in the fall was principally to his right hand, and resulted in numerous surgeries and the loss of most of its use. He qualified for and received workers' compensation benefits.

Humphrey brought suit against the landlord in October, 2002, claiming that it had a duty to maintain the leased premises; knew or should have known that the stairs were defective and created an unreasonable danger of falling; and were negligent in maintaining the premises, thereby creating a dangerous condition and allowing it to exist for an unreasonable period of time. After discovery concluded the landlord moved for summary judgment.

After considering three separate bases for liability argued by Humphrey, the judge granted summary judgment to the landlord. The judge first declined to extend the duty we announced in Young v. Garwacki, supra, to commercial landlords, and to impose on such landlords the duty to maintain a leased premises beyond what they might agree to undertake under the terms of the lease. The judge next rejected the argument that the landlord maintained sufficient control of the basement area to impose on the landlord, as a matter of law, a duty to maintain that area. Finally, the judge concluded that the landlord was not liable for injuries to third persons caused by an alleged "nuisance" (the defective stairs) that preexisted the lease to Gateway, see Whalen v. Shivek, 326 Mass. 142, 153-154, 93 N.E.2d 393 (1950), because such liability (to the extent a nuisance existed at all) was limited to personal injuries incurred outside of the leased premises, such as those sustained by a pedestrian from falling bricks or large stone blocks.

2. Standard of review. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Anderson St. Assocs. v. Boston, 442 Mass. 812, 816, 817 N.E.2d 759 (2004), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). See Mass. R. Civ. P. 56(c), 365 Mass. 824 (1974). The moving party may prevail by showing that the nonmoving party has no reasonable expectation of proving an essential element of his case at trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). We review the judge's decision in light of this standard, and as explained below, we agree with his conclusions.

3. Duty of commercial landlord. Prior to our Young decision, Massachusetts adhered to the common-law rule of let the lessee beware: "The tenant took the premises as he found them." Young v. Garwacki, supra at 165, 402 N.E.2d 1045, citing Gade v. National Creamery Co., 324 Mass. 515, 518, 87 N.E.2d 180 (1949). "[D]uring the term of the rental, `there could be no tort liability for nonfeasance in the absence of an agreement, for consideration, that the landlord would keep the premises in a condition of safety, and make all repairs without notice.'" Young v. Garwacki, supra at 166, 402 N.E.2d 1045, quoting DiMarzo v. S. & P. Realty Corp., 364 Mass. 510, 513, 306 N.E.2d 432 (1974). As to residential tenancies, we did away with this "ancient law," Young v. Garwacki, supra at 168, 402 N.E.2d 1045, and adopted the rule that "landlords as other persons must exercise reasonable care not to subject others to an unreasonable risk of harm. A landlord must act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk." Young v. Garwacki, supra at 169, 402 N.E.2d 1045, quoting Sargent v. Ross, 113 N.H. 388, 397-398, 308 A.2d 528 (1973). Humphrey urges us to extend this rule to commercial landlords.

Our Young decision was rooted largely in the gradual departure from the common-law agrarian model of leases, which regarded a lease as a conveyance of property. Young v. Garwacki, supra at 164-165, 402 N.E.2d 1045. In the residential context, "we have overthrown the doctrine of caveat emptor and the notion that a lease is a conveyance of property." Id. at 168, 402 N.E.2d 1045. Similarly, in the commercial context, we have recognized that the notion of a lease as a conveyance "no longer comports with the reality of the typical modern commercial lease, which is intended to secure the right to occupy improvements to the land rather than the land itself, and which usually contemplates a continuing flow of necessary services from landlord to tenant, services that are normally under the landlord's control." Wesson v. Leone Enters., Inc., 437 Mass. 708, 720, 774 N.E.2d 611 (2002), citing 1 M.R. Friedman, Leases § 1.1 (4th ed.1997). The modern trend is to regard leases not "as `conveyances,' [but] as contracts for the possession of property." Wesson v. Leone Enters., Inc., supra at 717, 774 N.E.2d 611.

Nonetheless, "we continue to recognize that there are significant differences between commercial and residential tenancies and the policy considerations appropriate to each." Wesson v. Leone Enters., Inc., supra at 719, 774 N.E.2d 611. As we have said in other contexts, "the bargaining power of commercial tenants at the lease drafting stage is ordinarily greater than that of residential tenants," 21 Merchants Row Corp. v. Merchants Row, Inc., 412 Mass. 204, 207, 587 N.E.2d 788 (1992), and "[c]ommercial tenants tend to be more sophisticated about the terms of their leases and, unlike residential tenants, commercial tenants generally purchase liability insurance." Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 778, 761 N.E.2d 946 (2002). For those reasons, we stated that "logic would dictate that, if we were to differentiate...