Pomfret v. Fletcher

• Decision Date: 29 March 1965
• Docket Number: No. 10637,10637
• Citation: 99 R.I. 452,208 A.2d 743
• Parties: Marion POMFRET v. Ronald L. FLETCHER et ux. Ex.
• Court: Rhode Island Supreme Court

Page 743

208 A.2d 743

99 R.I. 452

Marion POMFRET v.Ronald L. FLETCHER et ux.

Ex. No. 10637.

Supreme Court of Rhode Island.

March 29, 1965.

James J. McAleer, Joseph V. Cavanagh, Providence, for plaintiff.

Pontarelli & Berberian, Aram K. Berberian, Providence, for defendants.

CONDON, Chief Justice.

This is an action of trespass on the case by a tenant, Marion Pomfret, against her landlords, Ronald L. and Margaret F. Fletcher, husband and wife, for negligence in permitting a dangerous condition on a common walk of the rented premises to exist due to ice and snow.The case was tried to a justice of the superior court without a jury and resulted in a decision for the plaintiff.The defendants duly excepted thereto and have brought the case here by their bill of exceptions to such decision and to certain evidentiary rulings.

The plaintiff fell on the common walk which ran along the side of defendants' house from the front to the rear yard.The house was a duplex cottage which had been divided into two apartments.The plaintiff rented the front apartment and defendants occupied the rear apartment.In the rear yard defendants had provided receptacles for garbare and rubbish.The only access to the rear yard from plaintiff's front apartment was by means of the common walk.It was plaintiff's custom to use the walk two or three mornings a week between 7 and 7:30 o'clock to dispose of her garbage and rubbish.On the morning of January 13, 1960 the walk was icy in spots which had been covered by a light fall of snow during the night.

On that morning between 7 and 7:20 o'clock plaintiff left her apartment and proceeded slowly along the walk to the rear yard to dispose of some garbage when suddenly she slipped on an icy spot and fell on her back and hit her head.She could not get up immediately and she testified that while she was lying there defendantMargaret F. Fletcher came out 'evidently, to put salt or something' on the walk.Over objection she was asked if Mrs. Fletcher said anything to her at that time and plaintiff answered, 'She said that she was coming around to put salt on the walk.Her husband had been back and asked her to do it.That it was slippery.'The witness was then asked if Mrs. Fletcher had said anything further and replied, 'She said she should have got around there sooner.'The defendants moved to strike this latter testimony.The motion was denied and such denial is the subject of the first evidentiary exception.

Mrs. Fletcher did not testify.Mr. Fletcher testified that on January 13, 1960he left his apartment at about 7:10 or 7:11 a. m. and went along the walk at the side of the house; that he noticed a slippery spot; and that he went back into the house and told his wife, "You better get some salt out there because Marion might slip."He then went on his way to his work where he was due at 8 a. m.He testified further that when he left, his wife 'went to get the salt.'In rebuttal he was cross-examined as to whether he had sanded the walk on prior occasions.Over objection he answered, 'If we ran into a bad storm, sleet and ice storm and the walk was covered with ice, slippery conditions, I would put some sand on it.'This is the subject of the second evidentiary exception.

On the view which we take of defendants' third exception it will not be necessary to consider their first and second exceptions.For the purpose of determining whether the trial justice erred in holding defendants liable for the icy condition of the walk we shall assume without deciding that all the evidence before her was properly admitted.In this connection it should be noted that such evidence was undisputed and therefore the only question the trial justice had to determine was one of law, namely, whether defendants owed a duty to plaintiff to keep the walk free from a dangerous condition due to the natural accumulation of ice and snow.

Under their third exception defendants contend that they owed no such duty to plaintiff and therefore the trial justice erred in holding as she did that they were liable for the injuries plaintiff sustained by slipping and falling on the icy spot on the walk.Whether a landlord is liable to his tenant for injuries sustained by slipping and falling as a result of the accumulation of ice and snow on a common passageway of the rented premises from entirely natural causes is a question upon which the decided cases are not in agreement.An unbroken line of Massachusetts cases has answered the question in the negative.McNeill v. Home Savings Bank, 313 Mass. 664, 48 N.E.2d 695;Boulton v. Dorrington, 302 Mass. 407, 19 N.E.2d 731;Rogers v. Dudley Realty Corp., 301 Mass. 104, 16 N.E.2d 244;Smolesky v. Kotler, 270 Mass. 32, 169 N.E. 486;O'Donoughue v. Moors, 208 Mass. 473, 94 N.E. 749;Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357.The following cases from other jurisdictions are in accord: Harkin v. Crumbie, 46 N.Y.S. 453;Gianpaola v. Paoli, 129 N.Y.S. 180;Morse v. Houghton, 158 Iowa 279, 136 N.W. 675;Holcomb v. Szymczyk, 186 Wis. 99, 202 N.W. 188;Rankin v. Ittner Realty Co., 242 N.Y. 339, 151 N.E. 641;Turoff v. Richman, 76 Ohio App. 83, 61 N.E.2d 486;Lumley v. Backus Mfg. Co., 2 Cir., 73 F. 767.See alsoAnnot. II, 26 A.L.R.2d 615.In the same note a long list of cases contra appears.

We have not heretofore had occasion to pass upon this precise question.DeMello v. Saint Thomas the Apostle Church Corp., 91 R.I. 476, 165 A.2d 500 cited by plaintiff is not in point.There, although the plaintiff slipped on ice covering the church walk the following was the only question before us on all the defendant's exceptions: 'Was the plaintiff a licensee or an invitee while on land controlled by defendant?'Hence we do not agree with plaintiff's contention that to adopt the Massachusetts rule enunciated in the above-cited cases would in view of our holding in DeMello 'create an anomaly in our law.'Nor do we agree with her further contention that the duty a landlord owes to his tenant in the use of a common passageway 'is the same as that owed to a business invitee.'

The relation of a landlord to his tenant with reference to the condition of the rented premises is markedly different from the relation of an invitor to his business invitee.Perhaps it was due to this difference that no reference was made by counsel in DeMello to the rule governing the duty of a landlord to his tenant with which we are concerned here.

After consideration of the authorities on both sides of the question we are of the opinion that the Massachusetts rule is preferable to the contrary rule in certain other jurisdictions regardless of their numerical weight.We realize that it has met with sharp criticism in Reardon v. Shimelman, 102 Conn. 383, 128 A. 705, 39 A.L.R. 287, andUnited Shoe Machinery Corp. v. Paine, 1 Cir., 26 F.2d 594, but we are not persuaded that such criticism has destroyed or seriously impaired the reasoning upon which the Massachusetts cases rest.

In O'Donoughue v. Moors, supra, there was a fall of snow on a granolithic walk leading from the tenant's apartment to the street.The plaintiff fell on the ice and snow which the landlord had failed to remove.In denying liability the court said at page 475 of 208 Mass., at page 750 of 94 N.E.: 'The defect upon the walk on which she fell was due entirely to natural causes, the combination of rain and snow with freezing weather.He had made no agreement and there was nothing to show any duty on his part to guard against or to remedy such a condition.'And the court pointed out that a landlord was not liable for the dangerous condition of a common passageway where the condition was created by such a combination and not by a defect in the walk or the building or by reason of the snow being trampled upon.

In Boulton v. Dorrington, supra, the court had previously held that in the absence of a special undertaking on his part a landlord of an apartment house owed his tenant no duty to cover a porch used in common and to remove snow and ice naturally accumulating thereon.On the day of the accident the tenant fell on ice upon the porch steps.The icy condition was due solely to the weather.In the circumstances the court held that the defendant was not liable for the plaintiff's injury absent evidence in the record of any defect in the porch which contributed to the dangerous condition.

However, in the case at barplaintiff argues that even under the Massachusetts rule the landlord is held liable where he has assumed the duty as a term of the tenancy.And she seeks to bring her case within the compass of this subsidiary rule on the basis of the undisputed evidence that defendants here customarily salted or sanded the walk when snow or ice created a condition which required such action.In our opinion this evidence is insufficient to establish the duty as a term of the tenancy.There is no evidence in the record that defendants performed this service under any agreement with plaintiff at the inception...