Markarian v. Simonian, W-932

• Decision Date: 17 November 1977
• Docket Number: No. W-932,W-932
• Citation: 369 N.E.2d 718,373 Mass. 669
• Parties: Gary S. MARKARIAN et al. v. Sarah Chavoor SIMONIAN et al., trustees.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 718

369 N.E.2d 718

373 Mass. 669

Gary S. MARKARIAN et al. v. Sarah Chavoor SIMONIAN et al., trustees.

No. W-932.

Supreme Judicial Court of Massachusetts, Worcester.

Argued May 5, 1977.

Decided Nov. 17, 1977.

Roger J. Brunell, Worcester, for plaintiffs.

Edmund M. Pitts, Boston, for defendants.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.

LIACOS, Justice.

On June 28, 1966, Gary Markarian, the minor plaintiff, and his father, commenced an action in tort in the Superior Court for the county of Worcester. An amended declaration, filed on January 29, 1968, contained four counts; two sought damages for injuries suffered by the minor plaintiff on the basis that the defendants had been negligent in the maintenance of residential premises in which the minor plaintiff resided with his family, and the other two sought damages on the theory that the defendants were negligent in making repairs to those same premises. At the close of the evidence the defendants' motion for a directed verdict on all counts was allowed. The plaintiffs appealed to the Appeals Court on a bill of exceptions which contains all the facts necessary to resolve the appeal. We transferred the case here on our own motion.

The facts viewed in the light most favorable to the plaintiffs ¹ show that the injuries complained of took place in a dwelling house originally owned by the parents of the defendants. In 1949 the defendants' parents conveyed the property to a trust of which the defendants Sarah Chavoor Simonian and Jacob Chavoor were trustees. There was evidence from which the jury could conclude that the parents continued to take an active role in the maintenance and management of the property despite this conveyance. There was evidence to suggest that the parents made the arrangements with new tenants and that part of these arrangements included an agreement to make repairs. The father of the minor plaintiff testified that he and his family moved into the premises in question in 1959, pursuant to an agreement made with the defendants' father and that the terms of the agreement included the making of repairs by the defendants' parents. Mrs. Simonian acknowledged that her parents had made such representations.

The minor plaintiff was injured when he fell through a window screen which, allegedly, had been negligently installed by the defendants' mother. There was evidence from which the jury could conclude that in June, 1965, Mrs. Simonian's mother, Annie Chavoor, responded to a complaint from the Markarians by undertaking to remedy a problem with the kitchen window in the premises occupied by the Markarians. It could be found that Mrs. Chavoor, in the process of making the necessary repairs, caused the screen which had previously been in the window to be knocked out of the runners in which it had been held and that as a result of this occurrence the runners were bent out at a forty-five degree angle from their usual position. Further evidence presented would have allowed the jury to conclude that Mrs. Chavoor then replaced the screen with a new screen which was of a narrower width than the original. The window measured thirty-two inches wide while the new screen measured thirty and one-half inches wide. The jury could further have found that narrower replacement screens had been installed in the other apartments in the building but that new runners had been provided in those other apartments to accommodate the narrower width of the new screen. ²

After this repair was made Gary Markarian, the minor plaintiff, then two years old was playing in the kitchen. According to testimony, Gary went near the window, put his hands on the window sill which was close to the floor, put one knee in the same location and in the process of attempting to assume what appeared to be a sitting position brought his shoulders in contact with the screen which thereupon "burst" open from the bottom. Gary fell two stories to the ground.

At the trial the plaintiffs presented expert testimony with regard to the runners. The plaintiffs asked each expert whether the runners in their bent condition could properly hold the replacement screen. Each expert was asked also whether he had an opinion as to what caused the runners to become bent. On objection, the judge excluded these questions. The plaintiffs excepted and made an offer of proof to the effect that the runners could not hold the screen due to the bending out of the outer edge, and that the slightest pressure would cause the screen to pop out. The plaintiffs also offered to prove that the outer edges probably were bent due to blows by a hammer on the original screen by Mrs. Chavoor during the course of the repair to the window in question. ³

At the close of this evidence the judge granted the defendants' motion for a directed verdict. The plaintiffs appeal from that ruling as well as the judge's exclusion of the expert testimony.

1. It 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). A distinction has been made between such agreements, which imply access by the landlord to the property to ensure its safe condition, and ordinary agreements to make repairs, which are construed as requiring the tenant to give the landlord notice of a dangerous condition. DiMarzo v. S. & P. Realty Corp., supra. While a tenant may not recover in tort for the failure of landlord to effectuate requested repairs under an ordinary repair agreement, a tenant may recover for injuries suffered as a result of repairs effectuated in a negligent manner. Ibid. Koleshinski v. David, 328 Mass. 276, 279, 103 N.E.2d 262 (1952). On the other hand, if repairs are undertaken gratuitously, in the absence of a valid agreement, the plaintiff must prove and establish gross negligence in the effectuation of the repair in order to recover. Carney v. Bereault, 348 Mass. 502, 508, 204 N.E.2d 448 (1965).

Since the plaintiffs' declaration was grounded on ordinary negligence, their success on the merits, aside from the issue of the sufficiency of the evidence on the issue of negligence itself, depends on whether there was sufficient evidence to find that there existed an agreement between the tenant and the landlords or their agents to effectuate such repairs. ⁴

A. The bill of exceptions contains evidence that there was an agreement by the defendants' parents to do repairs on the premises. The defendants concede that much, but argue that the agreement, if any, applied only to those repairs necessary at the time of the commencement of the tenancy and not those needed six years later. However, unlike the facts in Ryerson v. Fall River Philanthropic Burial Soc'y, 315 Mass. 244, 251, 52 N.E.2d 688 (1943), the evidence before us in the bill of exceptions is not readily susceptible to such a limited construction and we decline so to construe it. Cf. Crowe v. Bixby, 237 Mass. 249, 252-254, 129 N.E. 433 (1921).

B. A more substantial question is whether this agreement is one for which the defendants can be held legally responsible. As there is no evidence in the bill of exceptions which would warrant a jury in finding that the defendants had personally entered into such agreements, the sufficiency of the evidence on this point must rise or fall on whether the defendants' parents can in some way be viewed as having acted as the agents of the defendants.

There was evidence from which a jury could conclude that Mr. and Mrs. Chavoor were actively engaged in the management of the premises in question. These management responsibilities included the making of arrangements with new tenants and agreements to make necessary repairs. The evidence...