Jordan v. Goddard

• Decision Date: 01 December 1982
• Citation: 442 N.E.2d 1162,14 Mass.App.Ct. 723
• Parties: Shelby JORDAN v. George GODDARD.
• Court: Appeals Court of Massachusetts

Page 1162

442 N.E.2d 1162

14 Mass.App.Ct. 723

Shelby JORDAN v. George GODDARD.

Appeals Court of Massachusetts Norfolk.

Argued Oct. 19, 1982.

Decided Dec. 1, 1982.

John T. Thornton, Boston, for defendant.

Daniel H. Kelleher, Boston (John J. Mackin, Boston, with him), for plaintiff.

Before PERRETTA, CUTTER and KASS, JJ.

CUTTER, Justice.

At trial there was conflicting testimony on various issues. The evidence, however, would have permitted the jury to find the following to be the facts.

About September 24, 1974, Jordan, a professional football player, moved into an apartment in Mansfield rented to him by Goddard, who owned the building. There was no written lease, but it was agreed that the rent was to be $150 a month, "heat, electricity, everything furnished." When the agreement was made, Goddard showed Jordan an area about four and a half to five feet wide, which Goddard said had "been used as a closet before." This contained "a clothes rack [essentially a single fixed horizontal pipe or pole about two inches in diameter] extending between two [side] walls." Directly under the left side of the clothes rack (looking from outside the area) was a gas space heater.

During October, 1974, Jordan used the heater twice at intervals of "[a]bout ten days." On each occasion the heater made "unusual popping noises" and caused the room to get hot enough to awaken Jordan. He had trouble manipulating the buttons so as to turn off the heater. According to his testimony, after each such incident, he spoke to Goddard about the malfunction of the heater. Goddard replied on one occasion, "I meant to tell you; there's a problem with the heater," and promised to "take a look at it." On the other occasion Goddard said, "I meant to fix it [the heater], but I've ... been so ... busy I didn't get around to it ... [b]ut I'll fix it today for sure." Jordan offered the key to his apartment to Goddard, who replied that he had his own key and could "get in."

Jordan is a very large man and used large clothing which would have taken up the whole rack but, because of the heater, he used only about three quarters of the rack. He did not use the portion of the rack "which was closest to the heater."

On October 28, 1974, Jordan returned to his apartment from a fraternity gathering about 3:30 A.M. There he had taken nothing to drink, and he did not smoke. He hung up his clothes with the nearest item of his clothing, a shirt, "no less than a foot" from the heater. ¹ He pushed in the "low button" on that and went to bed. While it was still dark, he smelled smoke. The sitting room and kitchen area were "engulfed in flames." He "rushed ... into the room where the flames were" and attempted to extinguish the flames with water. Then he wrapped himself in a blanket and, in great pain, rushed out and aroused the other occupants of the building. He was severely burned and was taken to a hospital. Jordan also lost tangible personal property in the fire.

Jordan testified that Goddard visited him in the hospital, and expressed the hope that the burns would not "ruin ... [his] football career," and went on to say, "I'm sorry, I should have fixed that ... heater .... I knew that thing was out of commission and I meant to fix it.... I know that ... clothes" for a "man your size" were "too big for that area ... I showed you." There also was testimony, largely from expert witnesses, that there was no indication of explosion in other parts of the gas lines of the apartment house; that the air vent of the heater was broken open and the heater's buttons, "pretty well melted," were out of line; that the front of the heater "had melted from heat"; that there "was a lot of charcoal ... around the heater ... and some sort of debris"; that the heat exchanger of the space heater was normal and had not been subject to any gas explosion; and that the deepest charcoal was near the heater, which indicated that the fire had started there. ²

A tenant who had occupied the apartment until August, 1974, testified that the space heater, installed in October, 1973 (to supplement the apartment's heat), "worked fine" for her but that, in the winter, she kept her clothing two feet away from the heater. Goddard conceded that he had bought the heater second-hand and did not know how old it was. The apartment otherwise was unheated except for "a radiator in the bathroom."

Jordan's complaint, filed on June 25, 1975, alleged that he was injured and lost personal property because of a fire upon the rented premises caused by Goddard's negligence. There was no allegation that Goddard had committed a breach of an implied covenant of habitability. Goddard by his answer denied any negligence, alleged that Jordan's negligence exceeded Goddard's, and, by way of counterclaim, asserted that Jordan "by his negligent conduct or omissions" caused the fire, thereby causing damage to Goddard's property.

At the close of Jordan's evidence and at the close of all the evidence, Goddard filed motions for a directed verdict which were denied. The case was submitted to the jury on special questions. To these, the jury answered (1) that Goddard was negligent; (2) that his negligence was a proximate cause of Jordan's injuries; (3) that Jordan was not "causally negligent;" (4) that the percentage of "causal negligence" attributable to Goddard was one hundred percent and to Jordan zero; (5) that Jordan sustained aggregate damages of $56,000 for his personal injuries and property damages; and (6) that, in connection with Goddard's counterclaim, Jordan was not "causally negligent." Judgment was entered accordingly on March 31, 1981. Goddard's motions (in Jordan's action and upon Goddard's counterclaim) for judgment notwithstanding the verdict were denied on April 8, 1981, as were motions for a new trial. Goddard on his appeal asserts (a) that Jordan's case was based on speculation and conjecture about any defect in the space heater; (b) that the trial judge gave a jury charge which did not properly reflect a landlord's duty to tenants under principles of law existing both before and after the decision of Young v. Garwacki, 380 Mass. 162, Mass.Adv.Sh. (1980) 729, 402 N.E.2d 1045; (c) that Jordan was barred from recovery because Jordan's failure to use the fire escape was the sole cause of his injuries; and (d) that the trial judge failed to instruct adequately about principles of law governing Jordan's liability on Goddard's counterclaim.

1. Goddard's motions for a directed verdict and for judgment notwithstanding the verdict were properly denied. On the evidence the jury (from Goddard's undertaking to furnish heat) could infer (a) that he had assumed the duty to repair and maintain the heater, the only adequate source of heat for the apartment, and (b) that Goddard in effect had retained control of the heater. It could be found that the fire started at or near the heater and was a consequence of Goddard's negligence in maintaining it. The matters just mentioned could be considered together with the testimony (received without objection) of Goddard's conversations with Jordan both before and after the fire (1) admitting his failure to warn Jordan of the defects of the heater (see Smith v. Green, 358 Mass. 76, 79, 260 N.E.2d 656 [1970]; see also Pfeiffer v. Salas, 360 Mass. 93, 99-100, 271 N.E.2d 750 [1971] ); (2) in effect stating that he had not performed his oral undertaking to put the heater in order; and (3) conceding that the area where the heater stood was too small for the clothes of a large man like Jordan. Taking all the circumstances disclosed by the evidence in their aspect most favorable to Jordan, the jury were warranted in concluding that the fire was caused by Goddard's negligence. See Zezuski v. Jenny Mfg. Co., 363 Mass. 324, 327-331, 293 N.E.2d 875 (1973). They could find that the area near the heater constituted an unreasonable and substantial fire hazard. We think that, even under the principles of Massachusetts law treated as essentially abandoned in Young v. Garwacki, 380 Mass. at --- - ---, Mass.Adv.Sh. (1980) at 732-735, 402 N.E.2d 1045, there was basis in the evidence for holding Goddard subject to liability to Jordan for negligence.

2. Goddard contends that, at least as to the 1974 injuries discussed in the present case, the 1980 Garwacki decision, 380 Mass. 162, Mass.Adv.Sh. (1980) 729, 402 N.E.2d 1045, is not controlling. Alternatively, he contends that the Garwacki decision applies only to guests of tenants and thus is inapposite in this case. By somewhat repetitive requests for rulings, Goddard asked the trial judge to instruct in substance that he as landlord could not be held liable for negligence in causing Jordan's injuries (a) unless Jordan established that Goddard had agreed to make repairs to correct a defective condition and had made them negligently, or (b) unless Jordan had not been warned of hidden defects, existing at the time of the letting, of which Goddard was aware. The trial judge instead charged in substance that the mere occurrence of the fire was not by itself evidence of Goddard's negligence but that the latter's negligence must be proved by a fair preponderance of the evidence. She then instructed also that "a landlord is under an implied duty to exercise reasonable care to maintain the rented premises in a reasonably safe condition" and "not to subject ... tenants to an unreasonable risk of harm." She charged further that the jury was "to say on the basis of [all] the evidence ... whether ... Goddard violated this standard or whether he acted as a reasonable prudent person ... under all ... the ... circumstances." They were told that they could give consideration (a) to the "condition of the heater" and to "whether it was defective ... at the time of the fire"; (b) to "what instructions were given or not given about the heater and about hanging clothing" near the heater and to what clothing was there; (c) to what, if anything, was said by...