Monterosso v. Gaudette

• Decision Date: 11 July 1979
• Citation: 391 N.E.2d 948,8 Mass.App.Ct. 93
• Parties: Gilda R. MONTEROSSO et al. 1 v. Roland J. GAUDETTE et al. 2
• Court: Appeals Court of Massachusetts

Page 948

391 N.E.2d 948

8 Mass.App.Ct. 93

Gilda R. MONTEROSSO et al. ¹ v. Roland J. GAUDETTE et al. ²

Appeals Court of Massachusetts, Berkshire.

Argued May 21, 1979.

Decided July 11, 1979.

Cynthia Spinola, Pittsfield, for plaintiffs.

William G. White, Springfield, for Harry Neparty, executor.

John D. Lanoue, Adams, for Roland J. Gaudette.

Owen R. Carrigan, Arlington, for Elsie W. Huston, submitted a brief.

Before GOODMAN, ROSE and GREANEY, JJ.

GREANEY, Justice.

The plaintiff fell and was injured in a landing off a common hallway located in a commercial building in Pittsfield leased by two stores, City Used Furniture and Eva's Corsetorium. She brought actions in negligence ³ against City's sole proprietor, Roland J. Gaudette, Eva Goodman, and the building's owner, Elsie Huston. At the close of the evidence each of the defendants properly moved for a directed verdict under Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974). The judge allowed Eva's and Huston's motions, denied Gaudette's, and sent the case against Gaudette to the jury by questions posed to them for a special verdict under Mass.R.Civ.P. 49(a), 365 Mass. 812-813 (1974). The jury found Gaudette causally negligent but also found the plaintiff to be a trespasser. ⁴ Based on the answers to the questions in the special verdict, the judge directed the entry of a judgment for Gaudette.

On appeal, the plaintiff claims error in (a) the allowance of Eva's and Huston's motions for directed verdicts, (b) certain instructions given to the jury with respect to Gaudette's liability and (c) the denial of her motion for a new trial (Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974)), as to all three defendants. Gaudette argues on appeal that the judge should have granted his motion for directed verdict. We hold that Gaudette's motion for a directed verdict was properly denied and that Eva's motion was properly allowed. We conclude that the evidence was sufficient to warrant the submission of the case to the jury as to the owner Huston and that there was error in the jury instructions on the question of Gaudette's liability. Accordingly, we reverse the judgments entered for Gaudette and Huston and order a new trial as to those two defendants.

1. Directed verdicts. We first take up the questions raised by the motions for directed verdicts. To frame the discussion on these issues, we summarize the evidence in the light most favorable to the plaintiff, under the familiar standard that if there exists "anywhere in the entire evidence any set of circumstances that will support a reasonable inference in favor of the plaintiff," Mazzaferro v. Dupuis, 321 Mass. 718, 719, 75 N.E.2d 503, 504 (1947); Campbell v. Romanos, 346 Mass. 361, 365, 191 N.E.2d 764 (1963), the motion must be denied. Becker's Inc. v. Breyare, 361 Mass. 117, 121, 279 N.E.2d 651 (1972).

Huston owned a commercial building in which she leased space to two stores, City Used Furniture and Eva's Corsetorium. In addition to their main entrances, both stores provided access to their customers from the rear parking lot by means of a back door which opened into a central hallway leading to both stores. Customers were invited to use this rear entrance by advertising signs indicating the presence of both enterprises, and would find the back door unlocked during the hours that either store was open for business. The central hallway was approximately thirty-two feet long and six feet wide, with two light fixtures in the ceiling. Entrances to the two stores were at the end of the hallway as one entered from the parking lot. From this perspective, Gaudette's door was to the left and Eva's was to the right of the hallway. Before reaching either store, a customer would pass several unmarked doors and openings as follows: to the right was a trap door which led to Eva's portion of the basement, and a door which led to a bathroom used by Eva's, which was always locked; immediately to the left as one entered the hall from the parking lot was an opening to a landing area, which was shielded only by a drape drawn across it. The landing area, one step down from the hallway, led to an open stairway descending to Gaudette's portion of the basement. The landing area was unlit, although a light in the basement could be turned on by a switch on the inside wall at the top of the stairs. Directly opposite the opening from the hallway, a step up from the landing, and on the same level as the hallway, was a bathroom for the use of Gaudette and his employees. The bathroom had a door and contained only a toilet. There was no sign in the hallway or on the bathroom itself indicating that it was private or that it could not be used by the public.

The plaintiff entered the building from the parking lot, on an evening when Eva's was open but City was closed, for the purpose of purchasing an undergarment at Eva's. Although she had stopped at Eva's on a previous occasion, she had never used the back entrance. As she walked into the corridor, she noticed Gaudette's bathroom immediately to her left, observing a "porcelain fixture" visible from the dimly lit hallway. She does not remember seeing a drape across the hallway opening. Because she wanted to freshen up before trying on an undergarment, she stepped into the unlit landing area, without realizing that there were steps down. She experienced "a feeling of falling," and next remembers walking in the parking lot, from whence she was transported to the hospital. An employee of Eva's retrieved the plaintiff's purse and glasses at the bottom of the stairs on Gaudette's portion of the basement and observed some blood at the base of the stairs.

The lease between Huston and Gaudette, which was introduced in evidence, leased to Gaudette the store and the basement area beneath it, and provided that Gaudette would have responsibility for repair and maintenance of the leased premises, while Huston was obligated to make all structural and major repairs. In addition, it specified that Gaudette was responsible for any changes in toilets required by State law, that he could not place signs in or on the building without Huston's written permission, and that he could install a staircase from the main store to the basement only at a place approved by Huston.

(a) Gaudette's motion for directed verdict. Gaudette argues that he was entitled to a directed verdict because there was no evidence that the landing area where the plaintiff fell, or the bathroom itself, was either leased to him or was otherwise under his control. For this proposition he relies upon King v. G & M Realty Corp., 373 Mass. 658, --- n. 8 ^A, 370 N.E.2d 413 (1977), which quotes with approval Restatement (Second) of Property Landlord & Tenant § 17.3 (1977). That section provides in pertinent part that "(a) landlord who leases a part of his property and retains in his own control any other part the tenant is entitled to use as appurtenant to the part leased to him, is subject to liability to his tenant and others lawfully upon the leased property . . . for physical harm caused by a dangerous condition upon that part of the leased property retained in the landlord's control, if the landlord by the exercise of reasonable care could have: (1) discovered the condition and the unreasonable risk involved therein; and (2) made the condition safe." Drawing on this language, Gaudette claims that the landlord, Huston, was in control of the landing area and, as a consequence, that she was solely responsible for any injuries to third persons that might occur as a result of the dangerous condition on the premises. We disagree.

Generally stated, a landlord is under "a common duty of reasonable care . . .to all lawful visitors" on premises within his control. Mounsey v. Ellard, 363 Mass. 693, 707, 297 N.E.2d 43, 51 (1973). But the scope of this general proposition as to the landlord's liability does not operate automatically to relieve a tenant of his duty to warn persons of dangerous conditions within his knowledge in areas appurtenant to his premises where those conditions foreseeably could cause harm to persons lawfully in such areas. The point that the landlord and the tenant may share joint responsibility in such circumstances is succinctly made by Comment (e) of the same section of the Restatement quoted above, which provides as follows: "e. Effect of tenant's knowledge of dangerous condition. The rule stated in this section applies to subject the landlord to liability to third persons entering the leased property, irrespective of whether the tenant knows or does not know of the dangerous condition. The tenant may, for example, know that the common entrance to the apartment or office he has leased has become dangerous for use because of the landlord's failure to maintain it in a safe condition. (The tenant's) Knowledge may subject him to liability to his own licensees if he fails to warn them of the danger (emphasis supplied) . . . ." The judge correctly ruled that the evidence presented a jury question on the plaintiff's theory that Gaudette may have negligently failed to warn third persons of a potentially dangerous condition which might cause foreseeable harm with regard to the area of the landing adjacent to his bathroom and his portion of the basement.

There was also sufficient evidence for jury consideration of whether Gaudette exercised control over the landing area and the bathroom. The lease provided that Gaudette was required to repair and replace the toilet if necessitated by State law; it also gave him the right to construct a stairway to his portion of the basement. The evidence indicated that the bathroom was provided for, and was used principally by, Gaudette and his employees. The landing area was an integral part of premises leased to Gaudette, and under the circumstances it was correct to place before the jury the issue of Gaudette's obligation to maintain premises under his control in a reasonably safe condition. Restatement ...