Spack v. Longwood Apartments, Inc.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before WILKINS; SPALDING
• Citation: Spack v. Longwood Apartments, Inc., 338 Mass. 518, 155 N.E.2d 873 (Mass. 1959)
• Decision Date: 05 February 1959
• Parties: Eleanor SPACK v. LONGWOOD APARTMENTS, INC.

Page 873

155 N.E.2d 873

338 Mass. 518

Eleanor SPACK v. LONGWOOD APARTMENTS, INC.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Jan. 7, 1959.

Decided Feb. 5, 1959.

Walter J. Hurley, Roxbury, for plaintiff.

Edward F. Hennessey, Boston, for defendant.

Before WILKINS, C. J., and RONAN, SPALDING, WHITTEMORE and CUTTER, JJ.

SPALDING, Justice.

The plaintiff, a daughter of a tenant of the defendant, was injured on March 8, 1955, as a result of a fall on a patch of ice on the sidewalk in front of steps leading to an apartment house owned by the defendant. The ice was on a 'patch area' which was about an inch below the macadam on the sidewalk and was contiguous to the steps. The apartment occupied by the plaintiff's father (hereinafter called Spack) was one of thirty-six apartments. A walk ran from the apartment house to a flight of stone steps which in turn led to the sidewalk where the plaintiff fell. Spack, with whom the plaintiff lived, had been a tenant in the apartment house for about six years prior to the accident under leases. On February 12, 1955, Spack entered into a new lease with the defendant which was to commence on April 1, 1955, and there was evidence that at the time of the negotiations for the lease Spack complained to one Widett, the defendant's treasurer, that such things as garbage removal, the cleaning of the hallways, and the removal of ice and snow had not been properly attended to, and he was reluctant to sign a new lease. But upon Widett's assurance that 'I will take care of everything. I will have the place cleaned, 'Spack signed the lease. There was evidence that the defendant's janitor had always taken care of the 'common areas' and that such care included the removal of ice and snow.

The case was submitted to the jury on two counts, 7 and 8. Count 7 was based on the defendant's obligation to remove ice and snow arising from an express contract; count 8 was based on an obligation arising from an implied contract. The jury returned a verdict for the defendant under count 7 and for the plaintiff under the eighth count, which was recorded under leave reserved. Thereafter, the judge entered a verdict for the defendant, subject to the plaintiff's exception.

There was no error.

The rights of the plaintiff to maintain her action are the same as those of her father, the tenant. Nash v. Webber, 204 Mass. 419, 421, 90 N.E. 872. The plaintiff properly concedes that in the absence of an express or implied agreement a lessor is under no obligation to remove natural accumulations of snow and ice on common passageways (Miller v. Berk, 328 Mass. 393, 396, 104 N.E.2d 163), and that a gratuitous undertaking by a lessor to remove ice and snow imposes no liability for ordinary negligence. Bell v. Siegel, 242 Mass. 380, 382, 136...