Pritchard v. Mabrey

Decision Date06 July 1970
Citation358 Mass. 137,260 N.E.2d 712
PartiesCharles P. PRITCHARD v. Marjorie V. MABREY et al., individually and as trustees.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

John F. Dunn, Boston, for defendants.

Joseph F. McGaffigan, Boston, for plaintiff.

Before WILKINS, C.J., and SPALDING, KIRK, REARDON and QUIRICO, JJ.

QUIRICO, Justice.

This is an action in tort to recover damages for personal injuries sustained by the plaintiff when he fell upon a patch of ice on the sidewalk of a public way in front of the defendants' premises. The plaintiff's amended declaration contained two counts. Count 1 is grounded on the defendants' alleged negligence in causing an unnatural accumulation of snow and ice to form on the sidewalk. Count 2 is grounded on the defendants' alleged collecting of water upon their premises and the discharging of it upon the sidewalk where it froze and created a nuisance. The case was tried to a jury who returned a verdict for the defendants on count 1 and a verdict for the plaintiff in the amount of $7,000 on count 2. The sole exception before us is that taken by the defendants to the denial of their single motion that the court 'direct verdicts in their favor on all counts of the plaintiff's declaration.' The defendants did not move before the trial court to set aside the verdict on count 2. They now contend that since the jury found no liability on count 1 for negligence, no liability can be found on count 2 for nuisance.

The jury could find the following facts from the evidence. In the early morning of December 17, 1960, the plaintiff was walking uphill on Anderson Street on Beacon Hill in Boston with one Miss Mona Smith, now the plaintiff's wife, toward her apartment at 32 Anderson Street. At a point on the public sidewalk in front of the defendants' property at 28 Anderson Street the plaintiff fell on some ice and broke his leg. After he fell and while he was still lying on the sidewalk waiting for assistance some water coming from bay windows of the defendants' building was dripping on him. Miss Smith went to his assistance and while she was kneeling near him she could feel water dripping on the back of her neck. It was coming from the bay windows directly above them. There were icicles around the edge of the bay windows on all its sides. The plaintiff was then lying on a thin patch of ice and two to three feet away from the building. He remained in that position until the police arrived and took him to a hospital. They also slipped on the ice and fell while removing the plaintiff. The next morning Miss Smith again saw the ice on which the plaintiff had fallen and also saw icicles hanging down from the bay windows. She had also seen icicles on the bay windows earlier in that winter.

The plaintiff seasonably notified the defendants of the time, place and cause of his injury as required by G.L. c. 84, §§ 18, 19 and 21, as amended.

The defendants' building at 28 Anderson Street is five stories high. At the second through fifth floors it has a three-sided bay window structure overhanging the public sidewalk by about three and one-half to four feet. The bottom of the bay windows is about fourteen feet above the sidewalk. At the top of the building there is a wide cornice which overhangs the sidewalk by about three and one-half feet beyond the exterior wall; and it follows the contour of the bay windows. The main roof slopes away from the street to a drain at the interior of the building. The sidewalk on Anderson Street is of concrete and is about five feet wide in front of the building.

There is nothing in the bill of exceptions or in the briefs of the parties on the circumstances under which the bay windows were built over the public sidewalk. Neither is there any reference to ordinances, regulations or permits governing or otherwise relating to the private use of such space above a public way. See G.L. c. 40, § 23. Cushing v. Boston, 128 Mass. 330. If there is any such ordinance, regulation or permit issued pursuant thereto for these bay windows, in deciding this case we do not have the benefit of it.

It has long been recognized by the law of this Commonwealth that the owner of land abutting a public way has the duty to refrain from using his land or maintaining conditions or structures thereon in a manner which will interfere with the safety and convenience of travelers on the public way. It is not necessary for the purposes of this case to discuss or to attempt to decide all that is included within that duty. It is sufficient for our present purpose that included therein is the duty of the owner (a) not to maintain on his land 'a building so near the street and so constructed that, in the ordinary course of things, snow or ice * * * (is) liable to fall from the roof upon travelers on the adjoining highway' (Shepard v. Creamer, 160 Mass. 496, 498, 36 N.E. 475), and (b) not to maintain on his land or on or above any part of the public way any structure or other physical condition which will 'collect water into a definite channel by a spout or otherwise and pour it upon a public way' (Field v. Gowdy, 199 Mass. 568, 570, 85 N.E. 884, 885). If the violation of that duty by the owner is the proximate cause of injuries to a traveler on the public way, the owner is held liable for such injuries. It will be sufficient to cite a few of the many cases in which this rule has been applied to permit recovery by an injured traveler. Many cases have held that owners of buildings with bay windows, cornices or other parts of the buildings projecting over public sidewalks were liable to travelers who were injured in falls on ice formed from water flowing or dripping of water from the projecting structure to the sidewalk. Shipley v. Fifty Associates, 101 Mass. 251; Id., 106 Mass. 194; Smethurst v. Barton Square Independent Congregational Church, 148 Mass. 261, 19 N.E. 387; Marston v. Phipps, 209 Mass. 552, 95 N.E. 954; Solomon v. Weissman, 265 Mass. 423, 164 N.E. 487; Bullard v. Mattoon, 297 Mass. 182, 8 N.E.2d 348; Tomasunas v. Khoury, 314 Mass. 754, 51 N.E.2d 325; Ferreira v. Gross, 323 Mass. 175, 80 N.E.2d 481; Laskowski v. Manning, 325 Mass. 393, 91 N.E.2d 231.

It is quite clear that in all of the earlier cases applying this rule the claim for recovery was based on allegations of the defendants' negligence, and if recovery was allowed, it was allowed on proof of negligence causing the injury. In Shipley v. Fifty Associates, 106 Mass. 194, 199, the court said, 'He has no right so to construct his building that it will inevitably, at certain seasons of the year, and with more or less frequency, subject his neighbor to * * * (the discharge of snow, ice or water which would not naturally fall on his land); and no other proof of negligence on his part is needed' (emphasis supplied). In Smethurst v. Barton Square Independent Congregational Church, supra, the declaration alleged negligence by the defendant. The defendant argued that the injuries of the plaintiff were caused by the falling of snow from a portion of a building projecting over a public way and therefore 'even if the defendant would be liable for a nuisance or in trespass, it is not liable in this action' for negligence. The court responded at 265 of 148 Mass., at 388 of 19 N.E.: 'Nor was such use the less properly described as careless and negligent because it was also distinctly wrongful.' In Shepard v. Creamer, supra, the court said at 498 of 160 Mass., at 475 of 36 N.E.: 'If the ground of liability is negligence, as the defendant contends it is then it was negligence to maintain a building so near the street and so constructed that, in the ordinary course of things, snow or ice was liable to fall from the roof upon travelers on the adjoining highway. * * * If the maintenance of the building as constructed was, as matter of law, negligence, the fact that the roof was constructed in the usual manner, and like that which had been used for many years on a large portion of the buildings on streets in Salem, would not help the defendant.' It is clear from this language that the negligence to which reference is made is the maintenance of a building which, as constructed, will cause the collection and discharge of snow, ice or water on a public way, and that it does not require proof that the collection and discharge were due to any defect, want of repair or deterioration in the building. Bullard v. Mattoon, 297 Mass. 182, 186--187, 8 N.E.2d 348.

Although the words 'nuisance' or 'public nuisance' were used in some of the earlier decisions on this subject, they were always used to describe conditions resulting from otherwise actionable wrongdoing, whether negligence or trespass. Shipley v. Fifty Associates, 101 Mass. 251, 254; Leahan v. Cochran, 178 Mass. 566, 568, 60 N.E. 382; Marston v. Phipps, supra, 209 Mass. at 555, 95 N.E. 954. The words were not used as descriptive of conditions or circumstances giving rise to liability without further proof that the conditions or circumstances resulted from negligence or other tortious conduct. This relationship between negligence and liability seemed to be recognized in the 1937 decision of Bullard v. Mattoon, 297 Mass. 182, 187, 8 N.E.2d 348, 350 where the court said: 'In such a case an injured plaintiff in order to recover is not obliged to prove specific negligence in the construction or maintenance of the owner's building. The duty of the owner is, not to erect or maintain his building so that it creates a dangerous area of ice upon the street. If the character...

To continue reading

Request your trial
15 cases
  • Collins v. American Drug Stores, Inc., 94-2176-JWL.
    • United States
    • U.S. District Court — District of Kansas
    • 15 de fevereiro de 1995
    ...causes a hazardous condition. See Lenz v. City of Minneapolis, 283 Minn. 180, 183, 167 N.W.2d 22 (1969). Accord, Pritchard v. Mabrey, 358 Mass. 137, 260 N.E.2d 712 (1970); Strandness v. Montgomery Ward, 199 N.W.2d 690 (N.D.1972). Appellant cannot avail herself of these authorities because s......
  • Davis v. Westwood Group
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 14 de julho de 1995
    ...his land, he must exercise reasonable care in the use of his land so as not to injure a traveler on the highway. Pritchard v. Mabrey, 358 Mass. 137, 140, 260 N.E.2d 712 (1970). In this case, Westwood did not fail to exercise reasonable care in the use of its land, nor was there any conditio......
  • Halbach v. Normandy Real Estate Partners
    • United States
    • Appeals Court of Massachusetts
    • 18 de novembro de 2016
    ...thereon in a manner which will interfere with the safety and convenience of travelers on the public way.” Pritchard v. Mabrey, 358 Mass. 137, 140, 260 N.E.2d 712 (1970). See ibid. (discussing duty owed to pedestrian injured on public sidewalk by private abutting landowner). In other words, ......
  • Holloway v. Madison Trinity Ltd.
    • United States
    • Appeals Court of Massachusetts
    • 18 de julho de 2019
    ...adjacent to or crossing his land." Davis v. Westwood Group, 420 Mass. 739, 743, 652 N.E.2d 567 (1995), citing Pritchard v. Mabrey, 358 Mass. 137, 140, 260 N.E.2d 712 (1970). Rather, the duty owed by the landowner or possessor is to "exercise reasonable care in the use of his land so as not ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT