Rogers v. Dudley Realty Corp.

Decision Date18 July 1938
Citation301 Mass. 104,16 N.E.2d 244
PartiesSAMUEL ROGERS v. DUDLEY REALTY CORPORATION.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

January 3, 1938.

Present: DONAHUE QUA, DOLAN, & COX, JJ.

Landlord and Tenant, Snow and ice, Common roof. Snow and Ice.

Without evidence that at the beginning of a tenancy at will icicles would not form at an angle of eaves maintained by the landlord over entrance steps for the common benefit of the premises let and adjoining premises owned by him, or that a gutter later added by the landlord had a tendency to increase accumulation of water at the angle, or that the gutter was in a defective or leaky condition at a still later time when icicles formed at the angle and caused water to drip on the steps which were part of the premises let and upon which a business visitor of the tenant fell, a finding of liability of the landlord for injuries thus caused was not warranted, whether the tenancy began before or at the time when the gutter was constructed.

TORT. Writ in the Superior Court dated February 5, 1935. A verdict for the defendant was ordered by Brown, J., who then reported the case to this court for determination.

J. J. Krohn, for the plaintiff.

J. H. Gilbride, (C.

R. Flood with him,) for the defendant.

QUA, J. The plaintiff sues for personal injuries which resulted from slipping upon ice on the steps while he was leaving a house owned by the defendant on Elm Hill Park in Boston.

The house was a two-family residence. One Burg was in occupation of the second floor when the defendant acquired title in 1927 or 1928, and he continued thereafter as a tenant at will of the defendant down to the time of the accident on December 23 1934. His entrance was No. 23. Another tenant occupied No 25. The front doors of the two apartments were near each other, and a small porch in front of the door of No. 23 adjoined a larger piazza which was in front of the door of No. 25. The roofs of the porch and of the piazza came together, forming an angle, and were surrounded by a continuous belt of widely projecting eaves which followed the contour of the roofs. The steps and entrances, however, were entirely separate, the steps where the accident occurred being a part of the premises let to Burg. At some time after the defendant acquired title it constructed a sun parlor upon the roof over the piazza of No 25 and added a continuous gutter forty to forty-five feet in length around the edge of the eaves over both flights of steps, with a down spout located at the end of the piazza farthest from No. 23.

We assume in the plaintiff's favor that there was evidence sufficient to support findings that the plaintiff was a business visitor to Burg and had the rights of Burg against the defendant; that his injury was caused by ice formed by water dripping upon Burg's steps from "a cluster of icicles" which hung from an angle in the gutter directly over the steps; that the plaintiff was in the exercise of due care; and that the eaves and gutter which ran over the entrances to both apartments were not demised to either tenant, but remained in the possession and control of the defendant for the common benefit of both.

Although the defendant as a landlord owed no duty to the plaintiff to keep the demised steps in good condition, Conroy v Maxwell, 248 Mass. 92 , 96, upon the foregoing assumptions, it did owe to him the same duty with respect to the eaves and gutter that it would owe with respect to a common passageway which it retained in its control, to wit: the duty to use due care to maintain them in as safe condition as they were in or appeared to be in at the beginning of the tenancy. Sullivan v. Northridge, 246 Mass. 382 . Kendall v. Tashjian, 258 Mass. 377 . Sordillo v. Fradkin, 282 Mass. 255 . We think the evidence insufficient to support a finding of a violation of this duty. If the purchase of the premises by the defendant while Burg was already in occupation is treated as the beginning of the tenancy, there is nothing to show that icicles would not form in the angle of the eaves and drip upon the steps at that time or that the addition of the gutter had any tendency to cause more water and ice...

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