McNeill v. Home Sav. Bank
| Decision Date | 26 April 1943 |
| Citation | 313 Mass. 664,48 N.E.2d 695 |
| Parties | MARGUERITE C. MCNEILL v. HOME SAVINGS BANK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
March 1, 1943.
Present: FIELD, C.
J., LUMMUS, QUA COX, & RONAN, JJ.
Landlord and Tenant, Snow and ice, Common passageway, Landlord's liability to tenant or his family or his invitee. Snow and Ice. Negligence, One owning or controlling real estate.
In the absence of a contractual obligation to the tenant to that effect, the landlord of a building occupied by several tenants and having a front areaway used in common by the tenants owed no duty to the tenant or to his employee to remove or sand a patch of ice which had formed in a depression existing in the areaway at the time of the letting to the tenant and upon which the employee slipped while crossing the areaway along a path shovelled in the snow by the landlord.
TORT. Writ in the Superior Court dated March 26, 1940. The action was tried before Giles, J.
R. J. Walsh, (G.
Sullivan & M L. Lourie with him,) for the defendant.
S. P. Sears, (J.
W. Lobdell with him,) for the plaintiff.
The plaintiff finished her day's work a little before six o'clock on the afternoon of February 27, 1940, at her employer's place of business, located in the defendant's building which was set back thirty to forty feet from the southerly line of Beacon Street, in Boston. She was proceeding over this setback area on her way to the street along a path that had been cleared of snow by the defendant's janitor when she slipped and fell upon ice formed from water that had collected in a depression. She had a verdict on a count alleging negligence on the part of the defendant. The defendant excepted to the denial of its motion for a directed verdict, to the refusal of requests for instructions, and to a portion of the charge. These exceptions rest upon two contentions, (1) that the plaintiff was a licensee at the time she was injured, and (2) that the defendant owed her no duty to remove the snow and ice and to sand the ice at the place where she fell.
The defendant on April 27, 1939, had leased to the plaintiff's employer the store at No. 809 Beacon Street with the basement thereunder for a term of two years. This store was located in the easterly portion of the street floor of a five-story brick building which was occupied by apartments. The building set back thirty or forty feet from the southerly side line of the street. The entrance to the store was the easterly of three single doorways, which were located side by side. The middle door was unused. The westerly door, which was numbered 811, was the entrance to the apartments. A concrete wall or curbing surmounted by an iron railing ran from the westerly side of this westerly doorway to Beacon Street. This setback area or front yard extended from the front of the building to the street and from the wall easterly across the defendant's premises. The surface of this area was level with the sidewalk and was composed of cement blocks four feet square. There were no lines or marks upon the cement blocks indicating that any portion thereof was to be used in conjunction with either of the two entrances. There was no designated path to either entrance. The entire area was used by persons entering or leaving the building. According to the defendant's president it "was a lot of land that went with the building" and "was used indiscriminately by the tenants and customers of the store and the employees." It had the "look of availability in all directions to people doing business or having concerns in the building." The place of the accident was directly in front of the doorway numbered 811 about three feet in from the street and, judging from the photographs, which were exhibits, approximately eight feet westerly of a line drawn at right angles to the building and extending from the entrance to the store to Beacon Street.
The defendant's janitor previous to the accident had shovelled a path commencing at the entrance to the store, then continuing by the other two doorways to the wall and along the wall to Beacon Street. He had cleared the snow and sanded the ice in the same location as this path on previous occasions, before and during the term of the lease, whenever there had been a snow storm. The president of the defendant testified that it was the duty of the janitor "to keep that front yard clear of snow and ice and if it was in a slippery condition it was his duty to sand it."
We assume in favor of the plaintiff that the lease of the store and basement granted to the lessee, as appurtenant to the premises described in the lease, the right to use the front yard as a common passageway as a means of access between the store and the street, Oliver v. Dickinson, 100 Mass. 114; Crabtree v. Miller, 194 Mass. 123; Tremont Theatre Amusement Co. v. Bruno, 225 Mass. 461; Maran v. Peabody, 228 Mass. 432 , that she had the same rights as her employer in travelling between the store and the street, and that in doing so she was not a licensee toward the defendant. Domenicis v. Fleisher, 195 Mass. 281 . Hawkes v. Broadwalk Shoe Co. 207 Mass. 117 . Baum v. Ahlborn, 210 Mass. 336 . White v. Beverly Building Association, 221 Mass. 15. Grady v. Gardiner, 272 Mass. 491 . Bacon v. Jaques, 312 Mass. 371 .
The defendant, by reserving the front yard in its possession and control for the use of all its tenants in the building, did not, in the absence of any agreement with the tenants, assume any obligation to keep the yard free from snow or ice or to sand the ice, and the only obligation that the law imposed upon it with reference to this area was one that arose out of the relationship of landlord and tenant and required it to keep the area in the same condition as to safety in which it was or appeared to be at the time of the letting. Silver v. Cushner, 300 Mass. 583 . Chambers v. Durling, 306 Mass. 327. It is undisputed that the depression at the place of the accident had existed before and since the tenancy of the lessee, the plaintiff's employer, had commenced. The defendant was not bound to improve the way by eliminating the depression, and if the accident was caused solely by the depression, the plaintiff could not recover. Sullivan v. F. W. Woolworth Co. 305 Mass. 378 . Boisse v. Goldberg, 306 Mass. 336 .
The plaintiff bases her case upon the...
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