Thompson v. Resnik

• Decision Date: 01 March 1932
• Citation: Thompson v. Resnik, 85 N.H. 413, 159 A. 355 (N.H. 1932)
• Parties: THOMPSON v. RESNIK.
• Court: New Hampshire Supreme Court

159 A. 355

THOMPSON

v. RESNIK.

Supreme Court of New Hampshire. Hillsborough.

March 1, 1932.

Transferred from Superior Court, Hillsborough County; Scammon, Judge.

Action by Frances Thompson against Ida Resnik.Case transferred on defendant's exceptions to denial of her motion for nonsuit and allowance of certain argument.

Judgment on the verdict.

Case to recover for personal injuries alleged to have been caused by the negligence of the defendant.Trial by jury with a verdict for the plaintiff.There was evidence tending to show that the plaintiff, a tenant of the defendant, was injured upon December 26, 1929, by falling down a flight of four outside steps in the rear of a tenement block owned by the defendant, which were provided for the common use of all the tenants, and that these steps were at the time covered with ice so that "it was all just like a hill."

Hurley & Connor(A. J. Connor orally), of Manchester, for plaintiff.

James A. Broderick, of Manchester, for defendant.

BRANCH, J.

In support of her motion for a nonsuitthe defendant seeks to invoke the rule which prevails in Massachusetts that: "The relation of landlord and tenant imposed on the defendant no duty to remove from the steps ice naturally accumulating thereon."Bell v. Siegel, 242 Mass. 380, 136 N. E. 109, 25 A. L. R. 1261;Woods v. Naumkeag, etc., Co., 134 Mass. 357, 45 Am. Rep. 344.This rule has been severely criticized, and competent authorities have declared that it cannot be justified upon grounds of principle.Reardon v. Shimelman, 102 Conn. 383, 387, 128 A. 705, 39 A. L. R. 287;United Shoe Machinery Corporation v. Paine (C. C. A.)26 F.(2d) 594, 58 A. L. R. 1398.Its adoption here would involve a limitation of or an exception to the general rule in regard to the liability of landlords for the condition of common passageways upon their premises which has heretofore been announced by this court as follows.With reference "to those portions of the premises which the landlord furnishes for the common use of his tenants and over which he retains control * * * he has the duty to use ordinary care to keep such portions in safe condition, and is liable to the tenant for injuries resulting from his failure to do so."Burelle v. Pienkofski, 84 N. H. 200, 201, 148 A. 24;Gobrecht v. Beckwith, 82 N. H. 415, 417, 135 A. 20, 52 A. L. R. 858;Saad v. Papageorge, 82 N. H. 294, 296, 133 A. 24.It is not necessary for us to consider at this time, however, the soundness of the Massachusetts rule, for even in that state the plaintiff would be allowed to go to the jury upon the testimony before us.

By its terms the Massachusetts rule has reference only to ice "naturally accumulating"; it does not apply to an "artificial formation of ice" resulting from water "discharged artificially in one place * * * so as to make it dangerous when frozen."For negligence in permitting such a situation to exist the landlord is liable.Watkins v. Goodall, 138 Mass. 533, 537.Furthermore, the rule in question does not operate to relieve a landlord from liability when it appears that he has assumed the duty of removing ice or snow under such circumstances that the tenant is entitled to rely upon its performance.Erickson v. Buckley, 230 Mass. 467, 120 N. E. 126;Nash v. Webber, 204 Mass....