Pereira v. Gloucester Community Pier Ass'n
| Decision Date | 05 June 1945 |
| Citation | 318 Mass. 391,61 N.E.2d 658 |
| Parties | ALBINO M. PEREIRA v. GLOUCESTER COMMUNITY PIER ASSOCIATION, INC. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 11, 1945.
Present: FIELD, C.
J., LUMMUS, QUA RONAN, & WILKINS, JJ.
Landlord and Tenant. Landlord's liability to tenant or his family or his invitee, Fish pier. Negligence, Invited person, Licensee Fish pier.
A visitor to a fish pier injured there through slipping on a foreign substance could not hold one in control of the pier liable on the basis of any rights derived by the visitor from a tenant of a store on the pier with whom he had done business, where it did not appear that the substance had come upon the pier after the tenant's tenancy began or that the tenant had any rights in the part of the pier where the accident occurred.
The captain of a fishing vessel, who, after he had unloaded his catch at the store of one of the tenants on a fish pier and had taken on a supply of ice from another tenant, had had no further business with the tenants and, pending the departure of the vessel on another voyage, had tied it up at another part of the pier for his own convenience and without payment or economic or business benefit to the person in control of the pier, was not a business visitor while on the pier on his way to the vessel, but was at most a mere licensee not entitled to hold the person in control liable for alleged negligence respecting a foreign substance on which he slipped and fell.
TORT for personal injuries alleged to have resulted from the defendant's negligence. Writ in the Superior Court dated December 10 1942.
The action was tried before Beaudreau, J. The jury found specially that the defendant was not "a public charitable corporation" and returned a general verdict for the plaintiff. The defendant alleged exceptions.
E. J. Garity, for the defendant. M. I. Bernstein, for the plaintiff.
The department of public works, acting for and in behalf of the Commonwealth, was authorized by various acts of the Legislature [1] to construct a fish pier and buildings thereon for the promotion of the fish industry and the commercial facilities of the city of Gloucester. The city furnished the site and laid out and constructed a highway suitable for heavy trucking from the pier to an existing highway. The Commonwealth expended more than a million dollars in constructing the pier, erecting two buildings and equipping one of them with the necessary machinery to manufacture ice and to maintain cold storage.
The defendant was organized under G. L. (Ter. Ed.) c. 180 for the purpose of managing the pier without profit and in such manner that the property should be made available to fishermen, fish dealers and the fishing industry generally, subject to such regulations as may be contained in its lease and also such as it may deem necessary. The membership of the defendant corporation is confined to those persons who from time to time are the city treasurer, the city auditor, and members of the municipal council, St. 1936, c. 303. St. 1937, c. 29. The Commonwealth leased the pier to the defendant at an annual rental of $20,000, and the defendant executed and recorded a declaration of trust to the effect that it held its interests under the lease for the benefit of all persons engaged in the fishing industry and without profit to the defendant and its members. The defendant has no stockholders. No dividends are declared. It has only one employee. He is manager of the pier. The defendant has been in control of the pier and the buildings thereon under its lease since November, 1938.
The pier is approximately one thousand feet long and three hundred feet wide. It has two buildings, one comprising eight stores for fish dealers and the other an ice manufacturing and cold storage plant. The incoming vessels go to the northerly side of the pier in front of the store of the dealer who has purchased the catch, and after unloading the fish the vessel is moved away from the front of the stores so that other vessels may discharge their cargoes. After a vessel is unloaded, it may proceed to the ice plant and take on a supply of ice, or it may sail to some other wharf and secure materials and supplies for its next trip.
The plaintiff, the captain and part owner of the "Portugal," arrived at the pier on August 14, 1942, and after the vessel was unloaded he moved it to the ice plant where he took on a supply of ice on August 15, 1942. He then tied up the vessel at the easterly end of the pier preparatory to sailing on the night of August 17, 1942. He arrived at the pier about 8:30 o'clock on that evening, having delayed the sailing on account of a rainstorm and squally weather. He stepped upon the caplog and then stepped down on a stringer, which was eight inches wide and was the top of a bumper protecting the pier; and while attempting to reach the rigging to climb down to the vessel, his foot slipped on the stringer and he fell against the rail of the vessel and into the water. It could be found that he slipped upon a patch of bituminous macadam similar to that used in surfacing the roadway of the pier before the defendant took possession under its lease. The jury returned a verdict for the plaintiff. The defendant excepted to the denial of a motion for a directed verdict and argues upon various grounds that it was error to deny the motion.
The plaintiff contends that he was a business visitor of the defendant at the time of the accident and that his injuries were caused by the negligence of the defendant. One who enters the business premises of another, at the express or implied invitation of a tenant, to transact business with the tenant, and is injured upon that part of the premises over which the tenant has a right to pass and which is in the control of the landlord, may recover against the landlord if the injuries were caused by a breach of duty owed to the tenant by the landlord. Feeley v. Doyle, 222 Mass. 155 . Cushing v. Jolles, 292 Mass. 72 . Cleary v Union Realty Co. 300 Mass. 312 . Diamond v. Simcovitz, 310 Mass. 150 . But the landlord performs his obligation to the tenant if he uses reasonable care to keep the common passageways in as safe a condition as they were in or appeared to be in at the time of the letting. Here there was no evidence that the bituminous macadam had been placed upon the stringer after the tenancy of the fish dealer who purchased the catch or of the ice plant began. In the next place, it is not...
To continue reading
Request your trial