Richmond v. Warren Inst. for Sav.

• Decision Date: 29 November 1940
• Citation: 30 N.E.2d 407,307 Mass. 483
• Parties: RICHMOND v. WARREN INSTITUTION FOR SAVINGS (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 483

30 N.E.2d 407

RICHMOND

v.WARREN INSTITUTION FOR SAVINGS (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 29, 1940.

Exceptions from Superior Court, Suffolk County; Burns, Judge.

Actions by Beryl W. Richmond against the Warren Institution for Savings for injuries sustained from fall caused by obstruction on stairway in defendant's apartment building, and by Harry B. Richmond against the same defendant for consequential damages. Verdicts were returned for defendant. On plaintiffs' exceptions.

Exceptions overruled.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, QUA, and DOLAN, JJ.

A. E. Yont, of Boston, for plaintiff.

E. Field and W. F. Casey, both of Boston, for defendant.

QUA, Justice.

The first action is for personal injuries sustained by the plaintiff on December 5, 1936, as the result of a fall caused by an obstruction in a common hallway and upon a common stairway in an apartment block in Boston owned by the defendant. The second action is by the husband of the plaintiff in the first action to recover consequential damages for the same injury. There were verdicts for the defendant.

The plaintiffs' exceptions to orders sustaining demurrers to an amended second count in their declarations need not be separately discussed, since it is apparent from the record that the trial of the cases was not affected by these orders, and that the substantial question presented by the demurrers is raised by exceptions taken at the trial which are dealt with fully later in this opinion.

At the trial there was evidence that the plaintiffs occupied an apartment in the defendant's building, and that between 6 and 6:30 p. m. as the female plaintiff was returning to the apartment, and as she started to ascend the stairs, she fell as the result of getting her foot caught in the spokes of the wheel of a bicycle that had been left in the lower hallway, with one of its wheels ‘on the lower stair,’ and the rest ‘curved around.’

The plaintiffs excepted to an instruction to the jury that G.L.(Ter.Ed.) c. 143, § 23, ‘has no application whatever to this case’ and to the refusal of the judge to instruct the jury in substance that this section did apply to these cases. The section reads as follows: ‘Every stairway of every building shall be kept free and unobstructed, and any person who permits any article to remain in any stairway of any building in such a manner as may impede the egress of any person lawfully in said building or the ingress of any person lawfully entitled to enter said building shall be punished by a fine of not more than five hundred dollars. The existence of any article in any such stairway in any building shall be prima facie evidence that it was placed or permitted to remain therein by the owner, lessee, tenant or occupant of the building.’

The ruling that this section did not apply to these cases was correct. The section created no new liability enforceable by civil action for damages. This is a penal statute, violation of which is punishable by a fine. It is part of a chapter of the General Laws which contains many provisions for the inspection and regulation of various types of buildings, enforceable, for the most part, through the imposition of specified penalties. Section 23 does not, either by its express terms or by reasonable implication, purport to impose a civil liability or to affect the mutual relations and duties of landlords and tenants as between each other. There is in this Commonwealth no doctrine of ‘negligence per se,’ whereby a penal statute designed to secure safety is held to create to the extent to which it applies a new standard of care other than and different from due care under the circumstances, so that violation of it is regarded as in itself necessarily a negligent act upon which a liability as for negligence can be predicated. Such a statute creates a new civil cause of action only when that appears by express terms or by clear implication to have been the legislative intent. Wynn v. Sullivan, 294 Mass. 562, 566, 3 N.E.2d 236. Statutes of a similar nature were held not to create new causes of action in Palmigiani v. D'Argenio, 234 Mass. 434, 125 N.E. 592;Vallen v. Cullen, 238 Mass. 145, 130 N.E. 216;Garland v. Stetson, 292 Mass. 95, 100, 197 N.E. 679;Wynn v. Sullivan, 294 Mass. 562, 3 N.E.2d 236; and Heilbronner v. Scahill, 303 Mass. 336, 338, 21 N.E.2d 716. That it was not the legislative intent to create a civil cause of action for violation of section 23 further appears from the fact that section 51 of the same chapter does expressly create civil causes of action for violations of certain other sections of the chapter, but not including section 23.

Violation of the statute had no effect as evidence of negligence. There can be negligence only with relation to a duty to exercise care, and as the statute creates no new duty of care as between landlord and tenant the duty of care, if any, in this case must be that existing at common law. See cases cited in the preceding paragraph and also Aldworth v. F. W. Woolworth Co., 295 Mass. 344, 347, 3 N.E.2d 1008. There is at common...