Underhill v. Shactman
| Decision Date | 24 June 1958 |
| Citation | 337 Mass. 730,151 N.E.2d 287 |
| Parties | Marion S. UNDERHILL v. Arthur SHACTMAN et al., trustees, et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Edwin R. Trafton, Boston, William J. Ryter, Dorchester, for plaintiff.
James D. Casey, Boston, for defendant Federated Department Stores, Inc.
John F. Finnerty, Boston, for defendants Shactman and others.
Before WILKINS, C. J., and RONAN, SPALDING, WHITTEMORE and CUTTER, JJ.
The plaintiff brought this action of tort for personal injuries against Arthur Shactman and others, hereinafter called the trustees, and Federated Department Stores Inc., doing business as Filene's and hereinafter called Federated. The declaration contained a count for negligence and one for nuisance against the trustees and Federated but we are concerned only with the negligence counts as the plaintiff does not now press the nuisance counts. At the close of the evidence verdicts were directed for the defendants and the case comes here on the plaintiff's exceptions to this action and on certain exceptions of the defendants to rulings on evidence. If the verdicts ordered for the defendants are to stand the defendants waive their exceptions.
There was evidence of the following: The trustees own the so-called Chestnut Hill Shopping Center, which is located partly in Brookline and partly in Newton. The center consists of a number of stores which are leased to various tenants. Surrounding these stores is a parking area. Federated occupies one of the buildings of the center under a written lease. The lease provides for a minimum rental and an additional rental based on a percentage of Federated's receipts. Under the least Federated had the right, in common with the other tenants of the center, to have the parking areas and the passageways leading to and from the areas and stores available for the use of its customers. The trustees had the 'duty to maintain and take care of the common passageways and parking areas.' This included the duty to maintain lights, remove snow and ice, and furnish at least one parking attendant. Federated together with other tenants had a right, with respect to the parking areas annd passageways, to employ additional parking attendants.
On December 22, 1950, the plaintiff, aged seventy-three was driven to the center by her daughter in order that she might do some shopping at Federated's store. The daughter drove into the center at the Hammond Street entrance where the trustees had erected and lighted a sign reading 'Chestnut Hill Shopping Center--Enter' and parked her automobile in one of the stalls marked on the pavement. This stall (No. 4) was along one edge of the driveway leading to the parking area. Along this side of the driveway was a retaining wall one foot in thickness which ran from Hammond Street into the parking area, a distance of about one hundred seventy-five to two hundred feet. Opposite stall No. 4 the wall rose eleven and one half inches above the grade of the driveway and the distance from the top of the wall down to the adjoining property was four feet eight inches. There was no railing or other protective device along the top of the wall. This condition, it seems, had obtained since the commencement of Federated's tenancy.
The plaintiff's daughter parked the automobile so that its right side was parallel with and a few inches away from the retaining wall. The weather was cloudy and it was about half an hour after sunset; it was dark or almost dark.
The evidence as to lighting of the driveway was conflicting. The plaintiff's daughter testified that she 'did not think there were any lights along the side of the driveway * * * and she didn't see any.' The plaintiff testified that the area where the automobile was parked was not lighted.
The plaintiff testified that after the automobile was parked and the headlights were turned off she opened the right door to get out. 'Before stepping out she looked * * * [and] saw a curbstone * * * [and] then stepped out of the motor vehicle sideways and backwards at a 45p angle to the car and wall with both feet 'onto the curbstone' (actually the top of the wall).' That is the last that she remembers. She 'saw something jutting up about a foot' but 'did not see a sidewalk to the right of what she saw,' as she did not look. Just as the plaintiff's daughter came around from the back of the automobile she saw her mother falling over the wall. From this fall the plaintiff sustained injuries from which this action arose.
1. With regard to Federated, there was no error in directing a verdict. Admittedly the passageways and parking area here involved were maintained for the benefit of Federated and the other stores in the center, but it is clear from the terms of the letting that the control of these areas at all times here material was in the trustees. And this is nonetheless so despite the facts that Federated had the right to supply extra parking attendants and the duty to carry insurance covering persons injured 'in or about the [demised] premises.' 'It is elementary that liability for damage caused by the condition of premises commonly depends upon control of the offending instrumentality, either through ownership or otherwise.' Frizzell v. Metropolitan Coal Co., 298 Mass. 189, 191, 10 N.E.2d 115, 116; Nichols v. Donahoe, 309 Mass. 241, 242, 34 N.E.2d 681; Brazinskos v. A. S. Fawcett, Inc., 318 Mass. 263, 265, 61 N.E.2d 105; Nunan v. Dudley Properties, Inc., 325 Mass. 551, 553, 91 N.E.2d 840.
2. The directed verdict against the trustees raises more difficult problems. Under our decisions the duty of the landlord who lets to several tenants, retaining control of common approaches, is to use reasonable care to maintain these approaches in as good condition as they were in or appeared to be at the time of the letting to the tenant. Marquis v. John Nesmith Real Estate Co., 300 Mass. 203, 205, 14 N.E.2d 395; Sullivan v. Belding, 315 Mass. 701, 703, 54 N.E.2d 1, and cases cited. The trustees argue that this rule absolves...
To continue reading
Request your trial
-
Holmes v. Kimco Realty Corp.
... ... of a contrary provision in the lease or leases."); Underbill v. Shactman, 337 Mass. 730, ... 151 N.E.2d 287, 290 (1958) (shopping center ... tenant not liable to customer who fell in parking lot landlord was obliged to ... ...
-
Newell v. Mont. W., Inc.
...the risk of such harm, or(b) the harm is suffered because of the other's reliance upon the undertaking.28 Accord Underhill v. Shactman, 337 Mass. 730, 151 N.E.2d 287, 290 (1958) (shopping center tenant not liable to customer who fell in parking lot that landlord was obliged to maintain, not......
-
Davis v. Westwood Group
...from the right to control land, even where the person held to such a duty does not own the land in question. Underhill v. Shactman, 337 Mass. 730, 733, 151 N.E.2d 287 (1958). See Anthony H. v. John G., 415 Mass. 196, 200, 612 N.E.2d 663 (1993), citing Mounsey v. Ellard, supra at 707-708, 29......
-
Halbach v. Normandy Real Estate Partners
...not own the land in question.” Davis v. Westwood Group, 420 Mass. 739, 744–745, 652 N.E.2d 567 (1995), citing Underhill v. Shactman, 337 Mass. 730, 733, 151 N.E.2d 287 (1958). That general principle does not apply here for two reasons. First, the record contains no evidence concerning the e......